EXHIBIT 10..5
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AMENDMENT TO TRIMARAN REGISTRATION RIGHTS AGREEMENT
Amendment, dated as of May 15, 2002, to that certain Registration
Rights Agreement, dated as of November 20, 2000, by and among SpectraSite
Holdings, Inc. (the "COMPANY") and Trimaran Fund II, L.L.C., Trimaran Capital,
L.L.C., Trimaran Parallel Fund II, L.P., CIBC Employee Private Equity Fund
(Trimaran) Partners and CIBC World Markets Ireland Limited (the "TRIMARAN
REGISTRATION RIGHTS AGREEMENT"). Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Trimaran Registration
Rights Agreement.
WHEREAS, pursuant to Section 13(e) of the Trimaran Registration Rights
Agreement, the Company and the undersigned holders of Restricted Stock,
representing not less than 60% of the voting power of the Restricted Stock
currently outstanding (assuming the exercise of the Warrants and excluding any
limitations on voting power affecting entities regulated by the Bank Holding
Company Act of 1956, as amended), desire to amend the Trimaran Registration
Rights Agreement as more particularly set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree,
effective as of the Closing Date (as defined below), as follows:
1. The last sentence of Section 5(c) of the Trimaran Registration
Rights Agreement is hereby amended and restated in its entirety as follows:
"The Company will not effect any other registration of its
Common Stock, whether for its own account or that of other
holders, from the date of receipt of a notice from requesting
holders pursuant to this Section 5 until the completion of the
period of distribution of the registration contemplated
thereby, except (i) as provided in this paragraph (c), (ii)
pursuant to the Company's Second Amended and Restated
Registration Rights Agreement dated April 20, 1999, as amended
through the date hereof or as it may be amended solely to add
additional parties (as so amended, the "Second Amended and
Restated Agreement") or (iii) pursuant to the Registration
Rights Agreement (as defined in the Funding Agreement dated as
of May 15, 2002 among the Company, SpectraSite Intermediate
Holdings, LLC and the several purchasers named therein), as it
may be amended from time to time (as amended from time to
time, the "2002 Registration Rights Agreement")."
2. The last sentence of the first paragraph of Section 6 of the
Trimaran Registration Rights Agreement is hereby amended and restated in its
entirety as follows:
"In such event, the Company shall include in such registration
(i) first, the securities the Company proposes to sell or the
securities proposed to be sold pursuant to Section 4 of the
Second Amended and Restated Agreement or Section 4, 5 or 7 of
the 2002 Registration Rights Agreement, pro rata among the
holders thereof participating in such registration based upon
the number of shares owned by each such holder, (ii) second,
the Restricted Stock requested to be included in such
registration hereunder, the "Restricted Stock" requested to be
included in such registration pursuant to the Second Amended
and Restated Agreement (other than Section 4 thereof) or
Section 6 of the 2002 Registration Rights Agreement, pro rata
among the holders thereof participating in such registration
based upon the number of shares owned by each such holder and
(iii) third, the Management Stock (as defined in the Second
Amended and Restated Agreement) requested to be included in
such registration pursuant to the Second Amended and Restated
Agreement, pro rata among the holders thereof participating in
such registration based upon the number of shares requested by
such holder, and (iv) fourth, other securities requested to be
included in such registration by persons other than holders of
Restricted Stock or Management Stock."
3. The first sentence of Section 13(a) of the Trimaran
Registration Rights Agreement is hereby amended by adding the phrase "or the
2002 Registration Rights Agreement" after the phrase "Second Amended and
Restated Agreement" in such sentence.
4. The Company hereby represents and warrants to the other
parties hereto that (a) the execution, delivery and performance of this
Amendment by the Company will not violate any provision of applicable law, any
order of any court or other agency of government, or any provision of any
indenture, agreement or other instrument to which the Company or any of its
properties or assets is bound, or conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument, except for such violations, conflicts
or breaches which, individually or in the aggregate, would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole and (b)
this Amendment has been duly executed and delivered by the Company and when this
Amendment is executed by the
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other parties hereto, the Trimaran Registration Rights Agreement as amended by
this Amendment, will constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms.
5. This Amendment shall not constitute an amendment or
modification of any other provision of the Trimaran Registration Rights
Agreement not expressly referred to herein. Except as expressly amended or
modified herein, the provisions of the Trimaran Registration Rights Agreement
are and shall remain in full force and effect. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Trimaran Registration Rights Agreement shall, after this Amendment becomes
effective, refer to the Trimaran Registration Rights Agreement as amended
hereby.
6. This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts and all such counterparts shall be
deemed to be one and the same instrument. Each party hereto confirms that any
facsimile copy of such party's executed counterpart of this Amendment (or its
signature page thereof) shall be deemed to be an executed original thereof.
7. This Amendment has been executed as of the date first above
written and will automatically and without further action of the parties become
effective on the Closing Date (as such term is defined in the Funding Agreement
among the Company, SpectraSite Intermediate Holdings, LLC and the several
purchasers named therein (the "FUNDING AGREEMENT")); PROVIDED that if the
Funding Agreement is terminated, this Amendment shall automatically and without
further action of the parties terminate and be of no force and effect.
8. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
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AMENDMENT TO TRIMARAN REGISTRATION RIGHTS AGREEMENT
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
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Name: Stephen H. Clark
Title: President and CEO
TRIMARAN FUND II, L.L.C.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title:
TRIMARAN CAPITAL, L.L.C.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title:
TRIMARAN PARALLEL FUND II, L.P.
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title:
CIBC EMPLOYEE PRIVATE EQUITY FUND (TRIMARAN) PARTNERS
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title:
CIBC WORLD MARKETS IRELAND LIMITED
By: /s/ Steven A. Flyer
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Name: Steven A. Flyer
Title: