$470,000,000
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
Among
PINNACLE TOWERS INC.
And
BANK OF AMERICA, N.A.
as Administrative Agent
BANKERS TRUST COMPANY
as Syndication Agent
BANKBOSTON, N.A.
as Documentation Agent
KEY CORPORATE CAPITAL INC.
UNION BANK OF CALIFORNIA, N.A.
SOCIETE GENERALE
as Managing Agents
DRESDNER BANK AG NEW YORK & GRAND CAYMAN BRANCHES
THE BANK OF NOVA SCOTIA
CREDIT LYONNAIS NEW YORK BRANCH
COBANK, ACB
as Co-Agents
and
LENDERS
as defined herein
Dated as of September 17, 1999
With
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager
PINNACLE TOWERS INC.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS
1.01. Definitions.................................................................. 2
1.02. Accounting and Other Terms................................................... 27
ARTICLE II. THE LOAN FACILITIES
2.01. The Loans.................................................................... 27
2.02. Making Advances.............................................................. 28
2.03. Evidence of Debt for Borrowed Money.......................................... 29
2.04. Optional Prepayments......................................................... 30
2.05. Mandatory Prepayments........................................................ 30
2.06. Repayment.................................................................... 31
2.07. Interest..................................................................... 33
2.08. Default Interest............................................................. 33
2.09. Continuation and Conversion Elections........................................ 34
2.10. Fees and the Fee Letter...................................................... 35
2.11. Reduction of Commitment...................................................... 36
2.12. Funding Losses............................................................... 38
2.13. Computations and Manner of Payments.......................................... 38
2.14. Yield Protection; Changed Circumstances...................................... 40
2.15. Use of Proceeds.............................................................. 42
2.16. Collateral and Collateral Call............................................... 42
2.17. Replacement of a Lender...................................................... 43
2.18. Conditions Precedent to the Increase of the Commitment....................... 44
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit................................................ 46
3.02. Letters of Credit Fee........................................................ 47
3.03. Reimbursement Obligations.................................................... 47
3.04. Lenders' Obligations......................................................... 50
3.05. Administrative Agent's Obligations........................................... 50
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to Closing, Effectiveness of this Agreement and the
Refunding Advance........................................................... 51
4.02. Conditions Precedent to All Advances and Letters of Credit................... 52
ii
4.03. Conditions Precedent to Advances for Permitted Acquisitions.................. 53
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties............................................... 54
5.02. Survival of Representations and Warranties................................... 62
ARTICLE VI. GENERAL COVENANTS
6.01. Preservation of Existence and Similar Matters................................ 62
6.02. Business; Compliance with Law and Material Agreements........................ 62
6.03. Maintenance of Properties.................................................... 62
6.04. Accounting Methods and Financial Records..................................... 62
6.05. Insurance.................................................................... 63
6.06. Payment of Taxes and Claims.................................................. 63
6.07. Visits and Inspections....................................................... 63
6.08. Payment of Debt for Borrowed Money........................................... 63
6.09. Use of Proceeds.............................................................. 63
6.10. Indemnity.................................................................... 63
6.11. Environmental Law Compliance................................................. 64
6.12. Interest Rate Protection Agreements.......................................... 65
6.13. Issuance and Pledge of Capital Stock of the Borrower......................... 65
6.14. Continued Status as a Real Estate Investment Trust; Prohibited Transactions.. 65
6.15. Tenant Leases, Ground Leases and Fee Owned Property.......................... 66
6.16. Acquisitions, Generally...................................................... 67
6.17. Year 2000.................................................................... 68
ARTICLE VII. INFORMATION COVENANTS
7.01. Quarterly Financial Statements and Information............................... 68
7.02. Annual Financial Statements and Information; Certificate of No Default....... 69
7.03. Compliance Certificates...................................................... 69
7.04. Copies of Other Reports and Notices.......................................... 69
7.05. Notice of Litigation, Default and Other Matters.............................. 70
7.06. ERISA Reporting Requirements................................................. 71
7.07. Fee Owned Property, Ground Leases and Tenant Leases.......................... 72
ARTICLE VIII. NEGATIVE COVENANTS
8.01. Financial Covenants.......................................................... 73
8.02. Debt for Borrowed Money...................................................... 75
8.03. Liens........................................................................ 77
8.04. Investments.................................................................. 77
8.05. Amendment and Waiver......................................................... 78
8.06. Liquidation, Disposition or Acquisition of Assets, Merger, New Subsidiaries.. 79
8.07. Guaranties; Contingent Liabilities........................................... 79
8.08. Restricted Payments.......................................................... 80
8.09. Affiliate Transactions....................................................... 81
iii
8.10. Compliance with ERISA........................................................ 81
8.11. Capital Stock................................................................ 82
8.12. Sale and Leaseback........................................................... 82
8.13. Sale or Discount of Receivables.............................................. 82
8.14. Limitation on Restrictive Agreements......................................... 82
8.15. Synthetic Leases............................................................. 82
ARTICLE IX. EVENTS OF DEFAULT
9.01. Events of Default............................................................ 83
9.02. Remedies upon Default........................................................ 86
9.03. Cumulative Rights............................................................ 87
9.04. Waivers...................................................................... 87
9.05. Performance by Administrative Agent or any Lender............................ 87
9.06. Expenditures................................................................. 87
9.07. Control...................................................................... 87
ARTICLE X. THE ADMINISTRATIVE AGENT
10.01. Authorization and Action..................................................... 88
10.02. Administrative Agent's Reliance, Etc......................................... 88
10.03. Bank of America, N.A. and Affiliates......................................... 88
10.04. Lender Credit Decision....................................................... 89
10.05. Indemnification by Lenders................................................... 89
10.06. Successor Administrative Agent............................................... 89
ARTICLE XI. MISCELLANEOUS
11.01. Amendments and Waivers....................................................... 90
11.02. Notices...................................................................... 90
11.03. Parties in Interest and Register............................................. 92
11.04. Assignments and Participations............................................... 92
11.05. Sharing of Payments.......................................................... 93
11.06. Right of Set-off............................................................. 94
11.07. Costs, Expenses, and Taxes................................................... 94
11.08. Rate Provision............................................................... 97
11.09. Severability................................................................. 97
11.10. Exceptions to Covenants...................................................... 98
11.11. Counterparts................................................................. 98
11.12. GOVERNING LAW; WAIVER OF JURY TRIAL.......................................... 98
11.13. ENTIRE AGREEMENT............................................................. 98
11.14. Amendment, Restatement, Extension, Renewal and Increase...................... 99
iv
Table of Schedules and Exhibits
-------------------------------
Schedules
---------
Schedule 2.16 - Items required with respect to Each Fee Owned Real
Property of the Borrower and its Subsidiaries
Schedule 3.01 - Existing Letters of Credit
Schedule 5.01(a) - Jurisdictions of Qualification, Ownership and Capital
Structure - Borrower
Schedule 5.01(f) - FAA Non-Compliance as of the Closing Date
Schedule 5.01(h) - Existing Litigation
Schedule 5.01(w) - Tenant Leases in existence on the Closing Date
Schedule 5.01(x) - Ground Leases in existence on the Closing Date
Schedule 5.01(y) - Owned Real Property in existence on the Closing Date
Schedule 8.02 - Existing Debt and Liabilities
Schedule 8.03 - Existing Liens
Schedule 8.04 - Existing Investments
Schedule 8.09 - Existing Affiliate Transactions
Schedule 11.02 - Lender Addresses
Exhibits
--------
Exhibit A-1 - Form of Revolver Note
Exhibit A-2 - Form of Term Loan A Note
Exhibit A-3 - Form of Term Loan B Note
Exhibit B - Form of Security Agreement (Borrower)
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Borrowing Notice
Exhibit E - Form of Conversion/Continuation Notice
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Guaranty of Subsidiaries
Exhibit H - Form of Security Agreement (Subsidiary)
Exhibit I - Form of Subordination Agreement
Exhibit J - Form of Borrower Pledge Agreement
Exhibit K - Form of Certain Ground Lease Provisions
Exhibit L - Form of Guaranty of Parent
Exhibit M - Form of Parent Pledge Agreement
Exhibit N - Form of Estoppel and Attornment Language
$470,000,000
PINNACLE TOWERS INC.
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDED AND RESTATED CREDIT AGREEMENT is dated as of September
17, 1999, among Pinnacle Towers Inc., a Delaware corporation (the "Borrower"),
the Lenders (as defined below), Bank of America, N.A., as a Lender and
Administrative Agent (the "Administrative Agent"), Bankers Trust Company, as
Syndication Agent, BankBoston, N.A., as Documentation Agent, Key Corporate
Capital Inc., Union Bank of California, N.A. and Societe Generale, as Managing
Agents and Dresdner Bank AG New York & Grand Cayman Branches, The Bank of Nova
Scotia, Credit Lyonnais New York Branch and COBANK, ACB as Co-Agents. Banc of
America Securities LLC acted as Sole Lead Arranger and Sole Book Manager.
BACKGROUND.
WHEREAS, Borrower entered into that certain Fourth Amended and Restated
Credit Agreement with Bank of America, N.A. (formerly known as NationsBank,
N.A.) and Lenders, dated as of June 25, 1999 (the "Original Credit Agreement")
which provided for loan facilities in the initial amount of $470,000,000;
WHEREAS, Borrower and Administrative Agent have agreed to restructure,
extend, renew, refinance, and restate such indebtedness under the Original
Credit Agreement as set forth herein to provide for three separate facilities 1)
a seven year reducing revolver facility in the initial amount of $235,000,000
(with a subfacility provided by Bank of America Canada to a Canadian subsidiary
of the Borrower in a maximum amount not to exceed $16,464,800 Canadian Dollars
(such amount approximately equal to $11,000,000 on the closing date), 2) a seven
year delayed draw acquisition term loan in the amount of $125,000,000, and 3) an
eight year term loan in the amount of $110,000,000 (which must be fully drawn on
the date of closing), and to make certain other agreed to changes to the
existing credit facility among the parties thereto. Of the proceeds of the
facility referenced in 1) above, $219,957,000 be applied on the date hereof to
refinance indebtedness under the Original Credit Agreement Term Loan A (as
defined in the Original Credit Agreement) and such portions of Revolver A and
Revolver B (as each is defined in the Original Credit Agreement) that constitute
Acquisition Debt (as defined below).
AGREEMENT.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
hereto agree as follows:
1
ARTICLE I. DEFINITIONS
1.01. Definitions. As used in this Agreement, the following terms have
the respective meanings indicated below (such meanings to be applicable equally
to both the singular and plural forms of such terms):
"Acquisition Debt" shall have the meaning ascribed thereto in the
Indenture.
"Acquisition Agreement" means that certain Agreement For Purchase and Sale
of Assets by and between Motorola and the Borrower, in the form of the draft of
such agreement delivered to the Administrative Agent on June 24, 1999, and in
any executed copy of such Agreement For Purchase and Sale of Assets, so long as
any such executed copy is in such form delivered, with only minor and immaterial
changes, or such form with material changes that are consented to by the
Majority Lenders.
"Advance" means an advance made by a Lender to the Borrower pursuant to
Section 2.01 hereof which may be a Revolver Advance, a Term Loan A Advance or a
Term Loan B Advance (and may either be Base Advance or a LIBOR Advance), and
which such Advance may also be a Refinancing Advance.
"Affiliate" means a Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled By or is Under Common Control with
another Person.
"Administrative Agent" means Bank of America, N.A. in its capacity as
Administrative Agent hereunder, or any successor Administrative Agent appointed
pursuant to Section 10.06 hereof.
"Agreement" means this Fifth Amended and Restated Credit Agreement, as
hereafter amended, modified, increased, extended, restated or supplemented from
time to time.
"Annualized EBITDA" means, (a) with respect to Compliance Certificates
delivered in connection with Section 7.03 hereof, the product of (i) EBITDA for
the Parent, the Borrower and its Subsidiaries on a consolidated basis, for the
most recently completed fiscal quarter immediately preceding the date of
determination times (ii) four and (b) with respect to pro-forma Compliance
Certificates delivered in connection with Permitted Acquisitions delivered
pursuant to Section 6.16 hereof, the product of (i) EBITDA for the Parent, the
Borrower and its Subsidiaries on a consolidated basis, for the most recently
completed fiscal quarter immediately preceding the date of determination with
respect to which the Borrower has financial statements prepared, times (ii)
four.
"Applicable Law" means (a) in respect of any Person, all provisions of Laws
applicable to such Person, and all orders and decrees of all courts and
arbitrators in proceedings or actions to which the Person in question is a party
and (b) in respect of contracts made or performed in the State of Texas,
"Applicable Law" shall also mean the laws of the United States of America,
including, without limiting the foregoing, 12 USC Sections 85 and 86, as amended
to the date hereof and as the same may be amended at any time and from time to
time hereafter, and any
2
other statute of the United States of America now or at any time hereafter
prescribing the maximum rates of interest on loans and extensions of credit, and
the laws of the State of Texas, including, without limitations, Articles 5069-
1H, Title 79, Revised Civil Statutes of Texas, 1925, as amended ("Art. 1H"), if
applicable, and if Art. 1H is not applicable, Article 5069-1D, Title 79, Revised
Civil Statutes of Texas, 1925 ("Art. 1D"), as amended, and any other statute of
the State of Texas now or at any time hereafter prescribing maximum rates of
interest on loans and extensions of credit, provided however, that pursuant to
Article 5069-15.10(b), Title 79, Revised Civil Statutes of Texas, 1925, as
amended, the Borrower agrees that the provisions of Chapter 15, Title 79,
Revised Civil Statutes of Texas, 1925, as amended, shall not apply to the
Advances hereunder.
"Applicable Margin" means, (a) with respect to Advances outstanding under
the Term Loan A and the Revolver Loan, 2.75% per annum for LIBOR Advances and
1.50% per annum for Base Advances and (b) with respect to Advances under the
Term Loan B, 3.000% per annum for LIBOR Advances and 1.750% for Base Advances,
provided that, after the date which the Administrative Agent and the Lenders
receive a Compliance Certificate required to be delivered in accordance with the
terms of Section 7.01 hereof for the fiscal quarter ended June 30, 2000, then,
if there exists no Default or Event of Default, the Applicable Margin will be
the following per annum percentages applicable in the following situations:
Term Loan A and
Revolver Loan Term Loan B
Applicability Percentage Percentage
------------- --------------- -----------
(i) If the Leverage 2.750% 3.000%
Ratio is equal to or
greater than 6.00 to 1.00
(ii) If the Leverage 2.500% 3.000%
Ratio is equal to or
greater than 5.50 to 1.00
but is less than
6.00 to 1.00
(iii)If the Leverage 2.250% 3.000%
Ratio is equal to or
greater than 5.00 to 1.00
but is less than
5.50 to 1.00
(iv) If the Leverage 2.000% 3.000%
Ratio is equal to or
greater than 4.50 to 1.00
but is less than
5.00 to 1.00
3
(v) If the Leverage 1.750% 2.750%
Ratio is equal to or
greater than 4.00 to 1.00
but is less than
4.50 to 1.00
(vi) If the Leverage 1.500% 2.750%
Ratio is equal to or
greater than 3.50 to 1.00
but is less than
4.00 to 1.00
(vii)If the Leverage 1.250% 2.750%
Ratio is less than
3.50 to 1.00
In each case in the above grid, the Applicable Margin for Base Advances shall be
a per annum rate equal to 1.25% less than the Applicable Margin for the
applicable LIBOR Advance. The Applicable Margin payable by the Borrower shall
be (a) after the Administrative Agent has received all financial information
required by Section 7.01 hereof for the fiscal quarter ended June 30, 2000,
reduced or increased as applicable and as set forth in the table above, on a
quarterly basis according to the performance of the Parent, Borrower and
Subsidiaries of Borrower as tested by the Leverage Ratio and (b) further
increased as set forth in Section 6.15(c) hereof. Except as set forth in the
last sentence hereof, any such increase or reduction in the Applicable Margin
provided for herein shall be effective three Business Days after receipt by
Administrative Agent of the applicable financial statements and corresponding
Compliance Certificate. If financial statements and a Compliance Certificate of
the Borrower setting forth the Leverage Ratio are not received by the
Administrative Agent by the date required pursuant to Article VII hereof, the
Applicable Margin shall be determined as if the Leverage Ratio exceeds 6.00 to
1.00, until such time as such financial statements and Compliance Certificate
are received. For the final quarter of any fiscal year of the Borrower, the
Borrower may provide the unaudited financial statements of the Borrower, subject
only to year-end adjustments, for the purpose of adjusting the Applicable
Margin.
"Applicable Specified Percentage" means with respect to any Lender, in the
case of the Revolver Loan, such Lender's Revolver Specified Percentage, in the
case of the Term Loan A, such Lender's Term Loan A Specified Percentage, in the
case of the Term Loan B, such Lender's Term Loan B Specified Percentage, and in
the case of the Canada Indebtedness, with respect to the Canada Lender, such
Lender's Canada Specified Percentage.
"Application" means any stand-by letter of credit application delivered to
Administrative Agent for or in connection with any stand-by Letter of Credit
pursuant to Article III hereof, in Administrative Agent's standard form for
stand-by letters of credit.
"Art. 1D" has the meaning specified in the definition herein of "Applicable
Law".
4
"Art. 1H" has the meaning specified in the definition herein of "Applicable
Law".
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by Administrative Agent, in
the form of Exhibit F hereto.
---------
"Auditor" means PricewaterhouseCoopers LLP, or other independent certified
public accountants selected by the Borrower and acceptable to Administrative
Agent.
"Authorized Officer" means, with respect to the Borrower and its
Subsidiaries, the President, Chief Executive Officer, Chief Financial Officer or
the Controller of the Borrower.
"Bank Affiliate" means the holding company of any Lender, or any
wholly-owned direct or indirect subsidiary of such holding company or of such
Lender.
"BAS" means Banc of America Securities LLC.
"Base Advance" means an Advance bearing interest at the Base Rate.
"Base Rate" means a per annum interest rate equal to the lesser of (a) the
Highest Lawful Rate, and (b) the sum of the Applicable Margin plus the higher of
(i) a fluctuating rate per annum as shall be in effect from time to time
announced or published by Bank of America, N.A. as its prime rate, and which may
not necessarily be the lowest interest rate charged by Bank of America, N.A. and
(ii) the Federal Funds Rate in effect at such time plus .50%.
"Borrower Pledge Agreement" means the Pledge Agreement, executed by the
Borrower, granting a Lien on 100% of the Capital Stock of each of the Borrower's
Subsidiaries constituting Pledged Stock as security for the Obligations,
substantially in the form of Exhibit J hereto, as such agreement may be amended,
---------
modified, renewed or extended from time to time.
"Borrowing" means a borrowing of the same Type made on the same day.
"Borrowing Notice" has the meaning set forth in Section 2.02(a) hereof.
"Bridge Debt" has the meaning ascribed thereto in Section 8.02(c)(ii)
hereof.
"Business Day" means a day of the year on which banks are not required or
authorized to close in Dallas, Texas or Sarasota, Florida, or, if with respect
to any notice, payment or calculation related to a LIBOR Advance, in New York,
New York, Dallas, Texas, Sarasota, Florida or London, England.
"Canadian Dollars" means the lawful currency of Canada.
"Canada Guarantors" means the Borrower and the Parent.
"Canada Guaranty" means that certain Guaranty executed by the Canada
Guarantors, guaranteeing payment and performance of the Canada Indebtedness.
5
"Canada Indebtedness" means the Dollar Equivalent of all Debt for Borrowed
Money under that certain term loan incurred by Canada Sub from the Canada
Lender, in a maximum amount outstanding at any one time not to exceed
$16,464,800 Canadian Dollars (the Dollar Equivalent of such amount being
approximately equal to $11,000,000 on the Closing Date).
"Canada Indebtedness Agreements" means the Canada Guaranty, that certain
Term Loan Agreement, executed by the Canada Lender and the Canada Sub, dated as
of August 31, 1999, and each promissory note, security agreement, mortgage, deed
of trust, pledge agreement, assignment and all other documents, instruments and
agreements at any time evidencing any portion of the Canada Obligations, or
granting any Lien or security interest in any assets or properties securing all
or any portion of the Canada Obligations, or otherwise related to or executed in
connection with, the Canada Indebtedness.
"Canada Indebtedness Amount" means, on any date of determination, the
Dollar Equivalent of $16,464,800 Canadian Dollars (such Dollar Equivalent being
approximately $11,000,000 on the Closing Date), or the Dollar Equivalent of such
lesser amount as such amount is reduced by all repayments and prepayments of the
Canada Indebtedness from time to time.
"Canada Lender" means Bank of America Canada and any other lenders, or any
of their assignees, in each case which are at any time owed any portion of the
Canada Obligations.
"Canada Obligations" means the Dollar Equivalent of all obligations of the
Canada Sub and the Canada Guarantors under all agreements and documents executed
by each of the foregoing in connection with the Canada Indebtedness and the
Canada Guaranty, including, without limitation, all principal, interest, fees,
expenses and other payment obligations under such documentation, and all
"obligations" as defined in any such documentation.
"Canada Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on the signature pages hereof designated as its Canada
Specified Percentage, or as adjusted or specified (a) in any Assignment and
Acceptance or (b) in any amendment to this Agreement.
"Canada Sub" means Pinnacle Towers Canada, Inc., a corporation incorporated
under the laws of New Brunswick, Canada, and wholly owned indirect Subsidiary of
the Borrower.
"Canada Term Loan Advances" means the Dollar Equivalent of all advances
under the term loan constituting Canada Indebtedness.
"Capital Expenditures" means capital expenditures, as defined in accordance
with GAAP.
"Capital Leases" means capital leases and subleases, as defined in
accordance with GAAP.
6
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
of any Person that is a corporation and each class of partnership interests
(including without limitation, general, limited and preference units) in any
Person that is a partnership, and including options, warrants and similar
interests with respect to any such capital stock.
"Change of Control" means the occurrence of one of more of the following
events: (i) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all of the assets of
the Parent and its Subsidiaries, taken as a whole, to any Person or group of
related Persons, as defined in Section 13(d) of the Securities Exchange Act of
1934 (a "Group"), other than Permitted Holders, (ii) any Person or Group (other
than Permitted Holders) shall become the owner, directly or indirectly,
beneficially or of record, of shares representing 30% or more of the aggregate
voting power represented by the issued and outstanding voting stock of the
Parent or any successor to all or substantially all of its assets; or (iii) the
first day on which a majority of the members of the board of directors of the
Parent are not Continuing Directors.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
reference to any provision of the Code shall include all successor provisions
thereto.
"Collateral" has the meaning ascribed thereto in Section 2.16 hereof.
"Commitment" means $235,000,000 minus the sum of (a) the undrawn face
amount of all Letters of Credit plus (b) the sum of all reimbursement
obligations under Article III hereof, in each case as such amount may be
increased prior to June 30, 2001 in accordance with the terms of Section 2.18
hereof, plus (c) the Canada Indebtedness Amount, as such Commitment may be
further reduced from time to time or terminated pursuant to Sections 2.06, 2.11
or 9.02 hereof.
"Commitment Fee" means the fee described in Section 2.10(b) hereof.
"Communications Act" means, collectively, the Communications Act of 1934
and the rules and regulations promulgated thereunder, as from time to time in
effect.
"Compliance Certificate" means a certificate of an Authorized Officer in
the form of Exhibit C hereto, (a) certifying that such individual has no
---------
knowledge that a Default or Event of Default has occurred and is continuing, or
if a Default or Event of Default has occurred and is continuing, a statement as
to the nature thereof and the action being taken or proposed to be taken with
respect thereto, (b) setting forth detailed calculations with respect to the
covenants described in Section 8.01 hereof, (c) certifying to the appropriate
Applicable Margins and (d) setting forth a description of all acquisitions
consummated in the previous fiscal quarter with respect to which the Borrower
was not required to inform the Administrative Agent, describing the name of the
acquisition, the purchase price, whether such acquisition was an asset or
Capital Stock acquisition and the cash flow related to the towers acquired.
7
"Consequential Loss" with respect to (a) the Borrower's payment of all or
any portion of the then-outstanding principal amount of a LIBOR Advance on a day
other than the last day of the related Interest Period, including, without
limitation, payments made as a result of the acceleration of the maturity of a
Note, (b) subject to Administrative Agents' prior consent, a LIBOR Advance made
on a date other than the date on which the Advance is to be made according to
Section 2.02(a) or Section 2.09 hereof to the extent such Advance is made on
such other date at the request of the Borrower, or (c) any of the circumstances
specified in Section 2.04 hereof on which a Consequential Loss may be incurred,
means any loss, cost or expense incurred by any Lender as a result of the timing
of the payment or Advance or in liquidating, redepositing, redeploying or
reinvesting the principal amount so paid or affected by the timing of the
Advance or the circumstances described in Section 2.04 hereof, which amount
shall be the sum of (i) the interest that, but for the payment or timing of
Advance, such Lender would have earned in respect of that principal amount,
reduced, if such Lender is able to redeposit, redeploy, or reinvest the
principal amount, by the interest earned by such Lender as a result of
redepositing, redeploying or reinvesting the principal amount plus (ii) any
expense or penalty incurred by such Lender by reason of liquidating,
redepositing, redeploying or reinvesting the principal amount. Each
determination by each Lender of any Consequential Loss is, in the absence of
manifest error, presumptive evidence of the validity of such claim.
"Consolidated Leverage Ratio" means the ratio, at the end of the accounting
period with respect to which such determination is made, of (a) Total Debt minus
the sum of Subordinated Debt outstanding which is (i) (used instead of
Distributions to shareholders in connection with its REIT Status) permitted to
be incurred under Section 8.02(g) hereof and (ii) (without duplication)
described in Schedule 8.02(g) as the "Tidewater" debt guaranteed by ABRY in the
----------------
aggregate principal amount not to exceed $3,904,600 (provided that, only such
amount that is outstanding on any date of determination may be excluded), to (b)
Annualized EBITDA, provided that, the calculation of Consolidated Leverage Ratio
shall exclude revenues or charges attributable to Properties of the Borrower and
its Subsidiaries sold during the calculation period as if such sale occurred on
the first day of such period and shall include revenues and charges attributable
to Properties of the Borrower and its Subsidiaries purchased during such period
as if such purchase occurred on the first day of such period.
"Contingent Liability" means, as to any Person, any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt or obligation of any other Person in any manner, whether
directly or indirectly, including without limitation any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt, (b)
to purchase Property or services for the purpose of assuring the owner of such
Debt of its payment, or (c) to maintain the solvency, working capital, equity,
cash flow, fixed charge or other coverage ratio, or any other financial
condition of the primary obligor so as to enable the primary obligor to pay any
Debt or to comply with any agreement relating to any Debt or obligation, but
excluding endorsement of checks, drafts and other instruments in the ordinary
course of business.
"Continue," "Continuation" and "Continued" each refer to the continuation
pursuant to Section 2.09 hereof of a LIBOR Advance from one Interest Period to
the next Interest Period.
8
"Continuing Directors" means, as of any date of determination, any member
of the board of directors of the Parent who (i) was a member of such board of
directors on the date hereof or (ii) was nominated for election or elected to
such board of directors by any of the Permitted Holders or with the approval of
a majority of the Continuing Directors who were members of such board at the
time of such nomination or election.
"Control" or "Controlled By" or "Under Common Control" mean possession,
direct or indirect, of power to direct or cause the direction of management or
policies (whether through ownership of voting securities, by contract or
otherwise); provided that, in any event (a) any Person which beneficially owns
--------
(i) 10% or more (in number of votes) of the securities having ordinary voting
power for the election of directors of a corporation shall be conclusively
presumed to control such corporation and (ii) 10% or more of the interest in
capital or profits of a partnership shall be conclusively presumed to control
such partnership, and (b) no Person shall be deemed to be an Affiliate of a
corporation solely by reason of his being an officer or director of such
corporation.
"Controlled Group" means, as to any Person, all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
which are under common control with such Person and which, together with such
Person, are treated as a single employer under Section 414(b), (c), (m) or (o)
of the Code.
"Conversion or Continuance Notice" has the meaning set forth in Section
2.09(b) hereof.
"Debt" means all obligations, contingent or otherwise, which in accordance
with GAAP are required to be classified on the balance sheet as liabilities, and
in any event including (without duplication) (a) Capital Leases, (b) Contingent
Liabilities that are required to be disclosed and quantified in notes to
consolidated financial statements in accordance with GAAP, and (c) liabilities
secured by any Lien on any Property, regardless of whether such secured
liability is with or without recourse.
"Debt for Borrowed Money" means, as to any Person, at any date, without
duplication, (a) all obligations of such Person for borrowed money, letters of
credit (or applications for letters of credit), bankers' acceptances or other
similar instruments, (b) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments and (c) all obligations of such
Person to pay the deferred purchase price of property or services, except trade
accounts payable arising in the ordinary course of business, and, with respect
to the Parent, the Borrower and its Subsidiaries, including any accrued but
unpaid Earn-Out Liability, but excluding any unaccrued Earn-Out Liability,
provided that, notwithstanding the foregoing, with respect to the Parent, the
Borrower and the Subsidiaries of the Borrower, Debt for Borrowed Money shall
specifically include (without duplication) all Canada Obligations and all
obligations under the Canada Guaranty.
"Debtor Relief Laws" means applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the enforcement
of creditors' rights generally.
9
"Default" means any event specified in Section 9.01 hereof, whether or not
any requirement in connection with such event for the giving of notice, lapse of
time, or happening of any further condition has been satisfied.
"Distribution" means, as to any Person, (a) any declaration or payment of
any distribution or dividend (other than a stock dividend) on, or the making of
any pro rata distribution, loan, advance, or investment to or in any holder of,
any partnership interest or shares of capital stock or other equity interest of
such Person (or the establishment of a sinking fund or otherwise setting aside
of funds for any such purpose), or (b) any purchase, redemption, or other
acquisition or retirement for value of any shares of partnership interest or
capital stock or other equity interest of such Person (or the establishment of a
sinking fund or otherwise setting aside of funds for any such purpose).
"Dollar Equivalent" means (a) in relation to any amount denominated in
Dollars, the amount thereof and (b) in relation to an amount denominated in
Canadian Dollars, the amount of such Dollars required to purchase the relevant
stated amount of Canadian Dollars at the Exchange Rate on the date of
determination.
"Earn-Out Liability" means, with respect to the Borrower and its
Subsidiaries, any unsecured contingent liability of the Borrower or any
Subsidiary of the Borrower incurred in connection with any Permitted
Acquisition, which such contingent liability (a) constitutes a portion of the
purchase price for the property acquired but is not an amount certain, (b) is
only payable based on the performance of the acquired property and in an amount
based only on the performance of the acquired property and (c) is not subject
to any acceleration right.
"EBITDA" means, for the Parent, the Borrower and its Subsidiaries, for any
period of determination, the sum of (a) net income for such period, excluding
non-cash income, plus (b) amortization and depreciation for such period, plus
(c) non-cash charges (minus non-cash income) and other extraordinary items for
such period to the extent not included in net income, plus (d) Interest Expense
for such period, plus (e) Income Tax Expense for the Parent, the Borrower and
its Subsidiaries for such period, plus (f) an adjustment to net income (without
duplication) for such period to account for the effect of treating all
acquisitions completed in such period as if such acquisitions had been completed
on the first day of such period, plus (g) an adjustment to net income for such
period to record (i) an increase in revenue related to all new leases executed
or acquired in the period as if such leases were effective as of the beginning
of such period and (ii) a decrease in revenue related to all terminated or
canceled leases during the period as if such leases were terminated or canceled
as of the beginning of such period, provided that, determinations of adjustments
to EBITDA with respect to the assets acquired by the Borrower in connection with
the Motorola Acquisition shall be calculated in a manner reasonably acceptable
to the Administrative Agent and Majority Lenders.
"Eligible Assignee" means any Lender, Related Fund of a Lender or Bank
Affiliate, and any (a) commercial bank organized under the laws of the United
States, or any state thereof, and having total assets in excess of
$1,000,000,000; (b) savings and loan association or savings bank organized under
the laws of the United States, or any state thereof, having total assets in
excess of $1,000,000,000, and not in receivership or conservatorship; (c)
commercial bank organized
10
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is described in this clause; (d) central bank
of any country which is a member of the Organization for Economic Cooperation
and Development; and (e) any other Person approved by the Administrative Agent,
which approval will not be unreasonably withheld.
"Environmental Claim" means any written notice by any Tribunal alleging
liability for damage to the environment, or by any Person alleging liability for
personal injury (including sickness, disease or death), resulting from or based
upon (a) the presence or release, or threatened release (including sudden or
non-sudden, accidental or non-accidental, leaks or spills) of any Hazardous
Material at, in or from property, whether or not owned by the Parent, the
Borrower or any of its Subsidiaries, or (b) circumstances forming the basis of
any violation, or alleged violation, of any Environmental Law.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S)9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. (S)1801 et seq.), the Resource
Conservation and Recovery Act (42 X.X.X (X)0000 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. (S)1251 et seq.), the Clean Air Act (42 U.S.C.
(S)7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S)2601 et seq.),
and the Occupational Safety and Health Act (29 U.S.C. (S)651 et seq.) ("OSHA"),
as such laws have been or hereafter may be amended or supplemented, and any and
all analogous future federal, or present or future state or local, Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations issued thereunder, as from time to time
in effect.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of the Borrower or any Obligor, or is under
common control with 67 Borrower or any Obligor, within the meaning of Section
414(c) of the Code, and the regulations and rulings issued thereunder.
"ERISA Event" means (a) a reportable event, within the meaning of Section
4043 of ERISA, unless the 30-day notice requirement with respect thereto has
been waived by the PBGC, (b) the issuance by the administrator of any Plan of a
notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA), (c) the withdrawal by the Parent, the Borrower, any
Subsidiary of the Borrower, or an ERISA Affiliate from a Multiple Employer Plan
during a Plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA, (d) the failure by the Borrower, any Subsidiary of
the Borrower, or any ERISA Affiliate to make a payment to a Plan required under
Section 302 of ERISA, (e) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA, or (f) the
institution by the PBGC of proceedings to terminate a Plan, pursuant to Section
4042 of ERISA, or the occurrence of any event or condition that constitutes
grounds under
11
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, a Plan.
"Estoppel and Attornment Language" means estoppel and attornment language
substantially in the form of Exhibit N hereto, or such other language as may be
---------
approved in writing by Administrative Agent.
"Event of Default" means any of the events specified in Section 9.01 of
this Agreement, provided there has been satisfied any requirement in connection
therewith for the giving of notice, lapse of time, or happening of any further
condition.
"Excess Cash Flow" means, for any fiscal year of the Borrower, EBITDA for
such year minus the sum of (a) Fixed Charges for such year (excluding interest
paid or payable, at the option of the Borrower, in-kind), plus (b) (without
duplication) all voluntary principal prepayments on the Obligations pursuant to
Section 2.04 hereof during such period.
"Exchange Rate" means with respect to Canadian Dollars on a particular
date, the rate at which Canadian Dollars may be exchanged into Dollars, as set
forth on such date on the Reuters currency page for exchanges of Dollars into
Canadian Dollars. In the event that such rate does not appear on any Reuters
currency page, the Exchange Rate with respect to Canadian Dollars shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the
Borrower.
"FAA" means the Federal Aviation Administration, or any governmental agency
succeeding to the functions thereof.
"FCC" means the Federal Communications Commission, or any governmental
agency succeeding to the functions thereof.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with 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 Dallas, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such date on such
transactions received by Administrative Agent from three federal funds brokers
of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter and Agreement, dated June 23,
1999, between the Borrower and the Administrative Agent, as such letter may be
amended, modified, substituted, replaced, or increased from time to time, and
such other fee letters as may be executed among the parties from time to time,
as such letters may be amended, modified, substituted, replaced, or increased
from time to time.
"Final Maturity Date" means June 30, 2007, or such earlier date on which
all outstanding Advances under the Term Loan B and all other outstanding
Obligations are due and payable
12
(including, without limitation, whether by acceleration, installment payment,
mandatory or voluntary commitment reduction or mandatory or voluntary
prepayment).
"First Maturity Date" means June 30, 2006, or such earlier date on which
all outstanding Advances under the Revolver Loan and the Term Loan A,
respectively, are due and payable (including, without limitation, whether by
acceleration, installment payment, scheduled reduction of the Commitment to zero
or mandatory or voluntary commitment reduction of the Commitment to zero or
mandatory or voluntary prepayment).
"Fixed Charges" means, for any specified period for the Parent, the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) required
or scheduled principal and interest payments with respect to Debt for Borrowed
Money for such period, plus (b) required or scheduled principal payments with
respect to seller notes executed by the Borrower in connection with Permitted
Acquisitions to the extent permitted by Section 8.02 hereof, plus (c) accrued or
paid Earn-Out Liabilities, plus (d) required or scheduled payments with respect
to Capital Leases for such period, plus (e) cash distributions made by the
Borrower and the Parent in accordance with the terms of Section 8.08(b)(iii)
hereof during such period (without duplication), plus (f) Capital Expenditures
for such period, plus, (g) (without duplication), cash Income Tax Expense of the
Parent, the Borrower and its Subsidiaries with respect to such period.
"GAAP" means generally accepted accounting principles applied on a
consistent basis. Application on a consistent basis shall mean that the
accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period, except for new
developments or statements promulgated by the Financial Accounting Standards
Board and other changes in accounting methods permitted by generally accepted
accounting principles.
"Ground Lease" means those certain leases for real property or rooftops
entered into or acquired by the Borrower or any Subsidiary of the Borrower, for
the lease of real property (including rooftops) which constitute a Tower or upon
which is located a Tower (or which will constitute a Tower or upon which will be
located a Tower) for the purpose of maintaining Tenant Leases, including,
without limitation, those Ground Leases described on Schedule 5.01(x) hereto.
----------------
"Guarantors" means the Parent and each Subsidiary of the Borrower existing
on the Closing Date or formed or acquired from time to time thereafter.
"Guaranty" means a guaranty executed by any Person of the obligations of
another Person, or any agreement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes liable upon, the obligation of any other Person, or agrees
to maintain the net worth or working capital or other financial condition of any
other Person, or otherwise assures any creditor or such other Person against
loss, including, without limitation, any comfort letter, or take-or-pay contract
and shall include without limitation, the contingent liability of such Person in
connection with any application for a letter of credit.
"Hazardous Materials" means all materials subject to any Environmental Law,
including without limitation materials listed in 49 C.F.R. (S) 172.101,
Hazardous Substances, explosive or
13
radioactive materials, hazardous or toxic wastes or substances, petroleum or
petroleum distillates, asbestos, or material containing asbestos.
"Hazardous Substances" means hazardous waste as defined in the Clean Water
Act, 33 U.S.C. (S) 1251 et seq., the Comprehensive Environmental Response
Compensation and Liability Act as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. (S) 9601 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. (S) 6901 et seq., and the Toxic Substances Control Act,
15 U.S.C. (S) 2601 et seq.
"Highest Lawful Rate" means at the particular time in question the maximum
rate of interest which, under Applicable Law, Administrative Agent is then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, such Lender is permitted to charge on the Obligations
shall change after the date hereof, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each change in the Highest Lawful Rate without notice
to the Borrower. For purposes of determining the Highest Lawful Rate under
Applicable Law, the applicable rate ceiling shall be (a) the indicated rate
ceiling described in and computed in accordance with the provisions of Art. lH;
or (b) either the annualized ceiling or quarterly ceiling computed pursuant to
.008 of Art. 1D; provided, however, that at any time the indicated rate ceiling,
-------- -------
the annualized ceiling or the quarterly ceiling, as applicable, shall be less
than 18% per annum or more than 24% per annum, the provisions of Sections
.009(a) and .009(b) of said Art. lD shall control for purposes of such
determination, as applicable.
"Income Tax Expense" means the aggregate Taxes accrued by the Parent, the
Borrower and its Subsidiaries for the relevant period of determination, plus any
cash Distributions made by the Borrower for the purposes of satisfying any Tax
liabilities in accordance with Section 8.08 hereof.
"Indenture" means that certain Indenture, dated March 20, 1998, between the
Parent and The Bank of New York, as trustee, in connection with the Parent
Senior Notes.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities within the meaning of Section 4001(a)(18) of ERISA.
"Interest Expense" means, for the Parent, the Borrower and its Subsidiaries
on a consolidated basis, all interest expense and commitment fees incurred with
respect to Total Debt whether accrued or paid, all fees or expenses with respect
to letters of credit, bankers' acceptances or similar facilities, excluding
interest actually paid-in-kind.
"Interest Period" means, with respect to any LIBOR Advance, the period
beginning on the date the Advance is made or continued as a LIBOR Advance and
ending one, two, three or six months thereafter (as the Borrower shall select),
provided, however, that:
-------- -------
(a) the Borrower may not select any Interest Period that ends after
any principal repayment date unless, after giving effect to such selection,
the aggregate principal amount of LIBOR Advances having Interest Periods
that end on or prior to such
14
principal repayment date, shall be at least equal to the principal amount
of Advances due and payable on and prior to such date;
(b) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided,
--------
however, that if such extension would cause the last day of such Interest
-------
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(c) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Interest Rate Protection Agreement" means an interest rate swap, cap,
collar or similar interest rate protection agreement between the Borrower and
any Lender or any Bank Affiliate.
"Investment" means any acquisition of all or substantially all of the
assets of any Person, or any direct or indirect purchase or other acquisition
of, or a beneficial interest in, capital stock or other securities of any other
Person, or any direct or indirect loan, advance (other than (i) advances to
employees for moving and travel expenses, (ii) drawing accounts, (iii) deposits
and advances made to contractors, vendors and others in the ordinary course of
business, (iv) xxxxxxx money deposits, good faith deposits and similar deposits
made in connection with Permitted Acquisitions, and (v) similar expenditures in
the ordinary course of business), or capital contribution to or investment in
any other Person, including without limitation the incurrence or sufferance of
Debt or accounts receivable of any other Person that are not current assets or
do not arise from sales to that other Person in the ordinary course of business.
"Law" means any constitution, statute, law, ordinance, regulation, rule,
order, writ, injunction, or decree of any Tribunal.
"Lenders" means (a) the lenders listed on the signature pages of this
Agreement, and each Eligible Assignee which hereafter becomes a party to this
Agreement pursuant to Section 11.04 hereof or pursuant to an amendment to this
Agreement or Section 2.18 hereof, for so long as each is owed any portion of the
Obligation or is obligated under any portion of the Commitment, and (b) the
Canada Lender, for so long as each is owed any portion of the Canada Obligation,
and in each case, any Bank Affiliate who is owed any portion of the Obligations.
"Lending Office" means, with respect to each Lender, its branch or
affiliate, (a) initially, the office of each Lender, branch or affiliate
identified as such on Schedule 11.02 hereto, and (b) subsequently, such other
--------------
office of each Lender, branch or affiliate as each Lender may designate to the
Borrower and Administrative Agent as the office from which the Advances of each
Lender will be made and maintained and for the account of which all payments of
principal and interest
15
on the Advances and the Commitment Fee will thereafter be made. Lenders may have
more than one Lending Office for the purpose of making Base Advances and LIBOR
Advances.
"Letter of Credit Commitment" means an amount equal to the lesser of (a)
$40,000,000 and (b) the remainder of the Commitment minus the sum of all
outstanding Revolver Advances.
"Letters of Credit" means the irrevocable standby letters of credit issued
by Administrative Agent under and pursuant to Article III hereof, and under or
pursuant to Article III of the Original Credit Agreement, as each may be
amended, modified, substituted, increased, replaced, renewed or extended from
time to time.
"Leverage Ratio" means the ratio, at the end of the accounting period with
respect to which such determination is made, of (a) Senior Debt of the Borrower
and its Subsidiaries (exclusive of Debt owed to each other), minus the sum of
Subordinated Debt outstanding which is (i) (used instead of Distributions to
shareholders in connection with its REIT Status) permitted to be incurred under
Section 8.02(g) hereof and (ii) (without duplication) described in Schedule
--------
8.02(g) as the "Tidewater" debt guaranteed by ABRY in the aggregate principal
-------
amount not to exceed $3,904,600 (provided that, only such amount that is
outstanding on any date of determination may be excluded), to (b) Annualized
EBITDA (excluding EBITDA attributable to the Parent), provided that, the
calculation of the Leverage Ratio shall exclude revenues or charges attributable
to Properties of the Borrower and its Subsidiaries sold during the calculation
period as if such sale occurred on the first day of such period and shall
include revenues and charges attributable to Properties of the Borrower and its
Subsidiaries purchased during such period as if such purchase occurred on the
first day of such period.
"LIBOR Advance" means an Advance bearing interest at the LIBOR Rate.
"LIBOR Lending Office" means, with respect to each Lender, the office
designated as its "LIBOR Lending Office" below its name on Schedule 11.02
--------------
hereto, or such other office of Lender or any of its affiliates hereafter
designated by notice to the Borrower and Administrative Agent.
"LIBOR Rate" means a simple per annum interest rate equal to the lesser of
(a) the Highest Lawful Rate, and (b) sum of the Applicable Margin plus the LIBOR
Rate Basis. The LIBOR Rate shall, with respect to LIBOR Advances subject to
reserve or deposit requirements under any Law, be subject to premiums assessed
therefor by each Lender, which are payable directly to each Lender in an amount
sufficient to compensate such Lender for any increased cost or reduced rate of
return attributable to such reserve deposit requirements. Any calculation by a
Lender of such increased cost or reduced rate of return which is in reasonable
detail and submitted to Borrower shall, in the absence of manifest error, be
presumptive evidence of the validity of such claim. Once determined for any
LIBOR Advance, the LIBOR Rate shall remain unchanged during the applicable
Interest Period.
"LIBOR Rate Basis" means, for any LIBOR Advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at
16
approximately 11:00a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "LIBOR Rate Basis" shall mean,
for any LIBOR Advance for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
--------
however, if more than one rate is specified on Reuters Screen LIBO Page, the
-------
applicable rate shall be the arithmetic mean of all such rates.
"License" means, as to the Parent, the Borrower, or any Subsidiary of the
Borrower, any license, permit, consent, certificate of need, authorization,
certification, accreditation, franchise, approval, or grant of rights by, or any
filing or registration with, any Tribunal or third Person (including without
limitation the FCC and the FAA) necessary for such Person to own, build,
maintain, or operate its business or Property.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien, or
charge of any kind, including without limitation any agreement to give or not to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement or other similar form of public notice under the
Laws of any jurisdiction (except for the filing of a financing statement or
notice in connection with an (a) operating lease or (b) the true consignment of
goods to the Borrower or any Subsidiary of the Borrower as consignee).
"Litigation" means any proceeding, claim, lawsuit, arbitration, and/or
investigation conducted by or before any Tribunal or arbitrator, including
without limitation proceedings, claims, lawsuits, and/or investigations under or
pursuant to any environmental, occupational, safety and health, antitrust,
unfair competition, securities, Tax, or other Law, or under or pursuant to any
contract, agreement, or other instrument.
"Loan" means, as applicable in the context used, the Revolver Loan, the
Term Loan A or the Term Loan B, and "Loans" means all or any combination of the
Revolver Loan, the Term Loan A and the Term Loan B, as applicable in the context
used.
"Loan Papers" means this Agreement, the Notes, the Security Agreements,
Borrower Pledge Agreement, the Subsidiary Guaranties, the Parent Guaranty, the
Parent Pledge Agreement, the Fee Letters, the Canada Indebtedness Agreements,
financing statements, mortgages, deeds of trust, any Interest Rate Protection
Agreement and related documents entered into by the Borrower with any Lender or
Bank Affiliate, all Letters of Credit, all Applications and all other agreements
between the Borrower, the Parent or any Subsidiary of the Borrower and the
Administrative Agent related to any Letter of Credit, letter agreements,
assignment of leases, other fee letters, Assignment and Acceptances,
post-closing letters, and all other documents, instruments, agreements, or
certificates executed or delivered from time to time by any Person in connection
with this Agreement or as security for the Obligations hereunder, granting
Collateral or otherwise, as each such agreement may be amended, modified,
substituted, replaced or extended from time to time.
17
"Majority Lenders" means any combination of Lenders having at least 51.00%
of the aggregate amount of the sum of (a) the outstanding Commitment plus (b)
the outstanding Term Loan A Advances, plus (c) the outstanding Term Loan B
Advances, plus (d) the outstanding Canada Term Loan Advances, provided, however,
that if the Commitment has been terminated, then (a) above will be the amount of
the outstanding Advances under the Revolver Loan.
"Material Adverse Change" means any circumstance or event that is or would
reasonably be expected to (a) be material and adverse to the financial
condition, business operations, prospects, or Properties of the Parent, the
Borrower and its Subsidiaries on a consolidated basis, (b) materially and
adversely affect (i) the validity or enforceability of or (ii) any material
Rights of the Administrative Agent or any Lender under (A) any Note, (B) this
Agreement or (C) any Loan Paper or Loan Papers which in the aggregate are
material, or (c) cause a Default or Event of Default.
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, a Lender is permitted to charge on the Obligations.
"Motorola" means Motorola, Inc., a Delaware corporation.
"Motorola Acquisition" means that certain acquisition by the Borrower of
certain tower assets of Motorola in accordance with the Acquisition Agreement.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower, any Subsidiary of the Borrower, or
any ERISA Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an obligation
to make contributions, such plan being maintained pursuant to one or more
collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower, any Subsidiary of the Borrower, or any ERISA Affiliate and at least
one Person other than the Borrower, any Subsidiary of the Borrower, and any
ERISA Affiliate, or (b) was so maintained and in respect of which the Borrower,
any Subsidiary of the Borrower, or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Net Proceeds" means the gross cash proceeds received by the Parent, the
Borrower or any Subsidiary of the Borrower in connection with or as a result of
(a) any asset sale not in the ordinary course of business, minus (so long as
each of the following are estimated in good faith by the management of the
Borrower and certified to the Lenders in reasonable detail by an Authorized
Officer) (i) distributions to be made, if any, by the Borrower to the Parent and
by the Parent to the Shareholders, each as permitted by Section 8.08 hereof,
plus to the extent the Borrower or such Subsidiary has any actual Tax liability,
actual Taxes payable with respect to such asset sale in an amount equal to the
Tax liability of the Parent, the Borrower or any Subsidiary of the Borrower in
respect of such sale (taking into account the distribution to the Parent and by
the Parent to the Shareholders, and all Tax benefits of each of the parties),
(ii)
18
reasonable and customary transaction costs payable by the Parent, the Borrower
or any Subsidiary of the Borrower related to such sale and (iii) Debt secured by
the assets sold that is immediately repaid as a consequence of such sale, and
(b) any additional equity or permitted Debt for Borrowed Money, except such Debt
for Borrowed Money that is specifically permitted to be incurred under the terms
of Section 8.02 hereof, minus (so long as it is estimated in good faith by the
management of the Borrower or such Subsidiary and certified to the Lenders in
reasonable detail by an Authorized Officer), reasonable and customary
transaction costs (including reasonable and customary broker's fees), payable by
the Parent, the Borrower or any Subsidiary of the Borrower related to such
transaction.
"Note" means each Note of the Borrower evidencing Advances hereunder,
substantially in the forms of Exhibits X-0, X-0 xxx X-0 hereto, together with
-------------------------
any extension, renewal or amendment thereof, or substitution therefor.
"Obligations" means all present and future obligations, indebtedness and
liabilities, and all renewals and extensions of all or any part thereof, of the
Borrower and each Obligor to Lenders and Administrative Agent arising from, by
virtue of, or pursuant to this Agreement, any of the other Loan Papers and any
and all renewals and extensions thereof or any part thereof, or future
amendments thereto, all interest accruing on all or any part thereof and
reasonable attorneys' fees incurred by the Administrative Agent for the
preparation of this Agreement and consummation of this credit facility,
execution of waivers, amendments and consents, and in connection with the
enforcement or the collection of all or any part thereof, and reasonable
attorneys' fees incurred by the Lenders in connection with the enforcement or
the collection of all or any part of the Obligations during the continuance of
an Event of Default, in each case whether such obligations, indebtedness and
liabilities are direct, indirect, fixed, contingent, joint, several or joint and
several. Without limiting the generality of the foregoing, "Obligations"
includes all amounts which would be owed by the Borrower, each other Obligor and
any other Person (other than Administrative Agent or Lenders) to Administrative
Agent or Lenders under any Loan Paper, but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower, any other Obligor
or any other Person (including all such amounts which would become due or would
be secured but for the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding of the Borrower, any other
Obligor or any other Person under any Debtor Relief Law).
"Obligor" means (a) the Borrower, (b) the Parent, (c) each Subsidiary of
the Borrower, (d) each other Person liable for performance of any of the
Obligations and (e) each other Person the Property of which secures the
performance of any of the Obligations.
"Oral Tenant Leases" means those Tenant Leases which are oral and not
subject to any written agreement.
"Original Credit Agreement" has the meaning ascribed thereto in the
preamble hereof.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
agency or entity performing substantially the same functions.
19
"Parent" means Pinnacle Holdings Inc., a Delaware corporation.
"Parent Guaranty" means any Guaranty executed by the Parent guarantying
payment and performance of the Obligations, substantially in the form of Exhibit
-------
L attached hereto, as such agreement may be amended, modified, renewed or
-
extended from time to time.
"Parent Pledge Agreement" means the Pledge Agreement executed by the
Parent, granting a Lien on 100% of the Capital Stock of the Borrower owned by
the Parent which such Capital Stock will constitute Pledged Stock securing the
Obligations, substantially in the form of Exhibit M hereto, as such agreement
---------
may be amended, modified, renewed or extended from time to time.
"Parent Senior Notes" means those certain 10% Senior Discount Notes due
2008 aggregating $325,000,000.00 amount in face value, unsecured, non cash
interest bearing (payment in kind only) for the first five years and issued by
the Parent pursuant to the Parent Senior Notes Documentation.
"Parent Senior Notes Documentation" means that certain Indenture and all
other written agreements and documentation relating to the Parent Senior Notes
in existence on the Closing Date or as permitted to be amended by Section 8.05
hereof.
"Permitted Acquisition" means any acquisition of assets related to the
communications tower or rooftop business, including, without limitation, (i) the
development, construction or acquisition of towers or rooftop space and related
real estate, ground leases, and easements for towers, rooftops, access and/or
guy wires, or (ii) acquisitions of 100% of the Capital Stock of any Person
owning or leasing towers or rooftop space, or (iii) acquisitions of leasehold
rights on Towers for the purpose of subleasing, in each case by the Borrower or
any Subsidiary of the Borrower, which, after giving effect to the proposed
acquisition and any equity investments and borrowings related thereto, would not
cause a Default or Event of Default under Section 8.01(a) or 8.01(b) hereof or
any other term or provision of this Agreement and the Loan Papers.
"Permitted Holders" means as of the date of determination (i) Xxxxxx
Xxxxxx and his spouse, and any of his respective estates, lineal descendants
(including adoptive children), heirs, executors, personal representatives,
administrators and trusts for any of their benefit and (ii) any other Person,
the majority of which voting stock is directly or indirectly owned by any Person
described in clause (i) above.
"Permitted Liens" means, as applied to any Person:
(a) any Lien in favor of the Lenders to secure the Obligations hereunder;
(b) (i) Liens on real estate for real estate Taxes not yet delinquent, (ii)
Liens created by lease agreements, statute or common law to secure the payments
of rental amounts and other sums not yet due thereunder, (iii) Liens on
leasehold interests created by the lessor in favor of any mortgagee of the
leased premises, and (iv) Liens for Taxes, assessments, governmental
20
charges, levies or claims that are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on such Person's books, but only so long as no foreclosure, restraint,
sale or similar proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and materialmen
and other similar Liens incurred in the ordinary course of business for sums not
yet due or being contested in good faith, if such reserve or appropriate
provision, if any, as shall be required by GAAP shall have been made therefor;
(d) Liens incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or similar legislation;
(e) Easements, right-of-way, restrictions and other similar encumbrances on
the use of real property which do not interfere with the ordinary conduct of the
business of such Person or materially and adversely affect the value of such
real property;
(f) Liens in respect of judgments or awards for which appeals or
proceedings for review are being prosecuted and in respect of which a stay of
execution upon any such appeal or proceeding for review shall have been secured,
provided that (i) such Person shall have established adequate reserves for such
judgments or awards, (ii) such judgments or awards shall be fully insured and
the insurer shall not have denied coverage, or (iii) such judgments or awards
shall have been bonded to the satisfaction of the Majority Lenders;
(g) Any Liens existing on the Closing Date which are described on Schedule
--------
8.03 hereto, and Liens resulting from the refinancing of the related Debt for
----
Borrowed Money, provided that the Debt for Borrowed Money secured thereby shall
not be increased and the Liens shall not cover additional assets of the
Borrower, the Parent or any such Subsidiary; and
(h) Any Liens which secure the Debt for Borrowed Money permitted under
Section 8.02(e) hereof.
"Person" means an individual, partnership, joint venture, corporation,
trust, Tribunal, unincorporated organization, and government, or any department,
agency, or political subdivision thereof.
"Pinnacle III" means Pinnacle Towers III Inc., a Florida corporation.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Stock" means all of the Capital Stock of the Subsidiaries of the
Borrower and all of the Capital Stock of the Borrower.
"Pro Forma Debt Service" means, on any date of determination, for the
Parent, the Borrower and its Subsidiaries, the sum of (a) cash Interest Expense
plus (b) required or scheduled principal payments with respect to Debt for
Borrowed Money, each for the four fiscal quarters immediately succeeding any
date of determination, provided that, with respect to any
21
Debt for Borrowed Money subject to a floating interest rate, the rate of
interest on such Debt for Borrowed Money for the four fiscal quarters
immediately succeeding any such date of determination shall be deemed to be the
weighted average interest rate applicable to the Obligations on the date of
calculation of Pro Forma Debt Service.
"Prohibited Transaction" has the meaning specified in Section 4975 of the
Code or Section 406 of Title I of ERISA.
"Property" means all types of real, personal, tangible, intangible, or
mixed property, whether owned or hereafter acquired in fee simple or leased by
the Parent, the Borrower and its Subsidiaries, including for the Borrower and
its Subsidiaries without limitation, the Tenant Leases.
"Pro Rata" means, as to any Lender, in accordance with its percentage of
the aggregate amount of outstanding Advances under the applicable Loan or all
the Loans; provided, however, that if no such Advances are outstanding, such
-------- -------
term means in accordance with such Lender's Applicable Specified Percentage or
Total Specified Percentage, as applicable.
"PT Transactions" means the following series of transactions: (a) the
issuance and sale by Pinnacle III, and the purchase by the Borrower, of certain
Capital Stock in Pinnacle III, (b) the issuance and sale by Pinnacle III, and
the purchase by Borrower and certain management and employee shareholders of
Parent or Borrower, of certain common Capital Stock in Pinnacle III and (c) the
sale by Borrower and the purchase by Pinnacle III of certain rooftop assets
acquired by the Borrower in the Motorola Acquisition.
"Qualified REIT Subsidiaries" means the Borrower and any Subsidiary of the
Borrower, so long as such entity meets the qualifications set forth in Section
856(i)(2) of the Code.
"Qualified Facility Revolver Advance" means all or any portion of any
Revolver Advance borrowed hereunder if, after giving effect to all or such
portion of such Advance the aggregate amount of outstanding Qualified Facility
Revolver Advances under the Revolver Loan does not exceed $15,000,000.
"Quarterly Date" means the last day of each March, June, September and
December during the term of this Agreement.
"Ratable" means, as to any Lender, a determination made in accordance with
its Applicable Specified Percentage or Total Specified Percentage, in each case
applicable in the context used.
"Refinancing Advance" means any Advance which is (a) used to pay the
principal amount (or any portion thereof) of an Advance at the end of its
Interest Period, or (b) a conversion of all or any portion of an outstanding
Base Advance to a LIBOR Advance, which, in each case after giving effect to such
application, does not result in an increase in the aggregate amount of
outstanding Advances.
"Register" has the meaning ascribed thereto in Section 11.03 hereof.
22
"REIT Conversion" means the occurrence of any one of the following events:
(a) the election by the Parent to no longer maintain its REIT Status, (b) the
election by the Borrower or any Subsidiary of the Borrower to no longer maintain
its Qualified REIT Subsidiary status, (c) the occurrence of any event which
results in the Parent no longer having REIT Status, or (d) the occurrence of any
event which results in the Borrower or any Subsidiary of the Borrower no longer
qualifying as a Qualified REIT Subsidiary.
"REIT Status" means, with respect to any Person, such Person's status as a
real estate investment trust, as defined in Section 856(a) of the Code, that
satisfies the conditions and limitations set forth in Sections 856(b) and 856(c)
of the Code.
"Related Fund" means with respect to any Lender that is a fund that invests
in bank loans, any other fund that invests in bank loans and is advised or
managed by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
"Release Date" means the first date on which all of the following have
occurred: (a) the Notes have been paid, (b) all other Obligations due and owing
have been paid and performed in full, (c) all Letters of Credit have been
terminated, fully drawn or extinguished, (d) all Canada Obligations have been
paid in full, and (d) the Commitment has been terminated.
"Restricted Payments" means (a) any direct or indirect Distribution,
dividend or other payment on account of any equity interest in, or shares of
capital stock or other securities of, the Borrower or the Parent (or the
establishment of any sinking fund or otherwise the setting aside of any funds
with respect thereto); (b) any management, consulting or other similar fees, or
any interest thereon, payable by the Parent, the Borrower or any of its
Subsidiaries to any Affiliate of the Parent, the Borrower, or to any other
Person other than an unrelated third party (or the establishment of any sinking
fund or otherwise the setting aside of any funds with respect thereto); and (c)
any cash payment of interest, principal, fees or penalties, on any Debt for
Borrowed Money or Subordinated Debt, or the establishment of any sinking fund or
otherwise the setting aside of any funds with respect thereto.
"Revolver Advances" means Advances made under the Revolver Loan.
"Revolver Loan" means the loan made by a Lender pursuant to Section 2.01(a)
of this Agreement.
"Revolver Note" means each Note of the Borrower evidencing Advances under
the Revolver Loan hereunder, substantially in the form of Exhibit A-1 hereto,
-----------
together in each case, with any extension, renewal or amendment thereof, or
substitution therefor.
"Revolver Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on the signature pages hereof designated as its
Revolver Specified Percentage, or as adjusted or specified (a) in any Assignment
and Acceptance, (b) in any amendment to this Agreement or (c) in each case, upon
each date of any reduction in the Canada Indebtedness Amount, the Revolver
Specified Percentage of each Lender will be adjusted to increase the
23
Canada Lender's Revolver Specified Percentage and decrease each other Lender's
Revolver Specified Percentage, such that, (i) after such adjustments to the
Revolver Specified Percentages of the Lenders, the Canada Lender's Revolver
Specified Percentage of the Commitment shall be equal to a greater amount than
prior to such adjustment (and such amount of increase shall be equal to the
amount of decrease in the Canada Indebtedness Amount), and (ii) both before and
after such adjustments to the Revolver Specified Percentages of the Lenders,
with respect to all Lenders other than the Canada Lender, each such Lenders'
Revolver Specified Percentage of the Commitment shall be equal to the same
Dollar amount.
"Rights" means rights, remedies, powers, and privileges.
"Second Parent Issuance" has the meaning ascribed thereto in Section
8.02(c)(i) hereof.
"Second Parent Issuance Documentation" means any indenture and all other
written agreements and documentation relating to the Second Parent Issuance to
be entered into in accordance with the terms of Section 8.02(c) hereof, as such
documentation is permitted to be amended by Section 8.05 hereof.
"Security Agreements" means (a) the Security Agreement, duly executed by
the Borrower and Parent in substantially the form of Exhibit B hereto,
---------
appropriately completed, and (b) each Security Agreement, duly executed by each
of the Borrower's Subsidiaries, in substantially the form of Exhibit H hereto,
---------
appropriately completed, in each case as amended, modified, substituted,
replaced or extended from time to time.
"Senior Debt" means, on any date of determination, the difference between
Total Debt and Debt of the Parent included in the definition of Total Debt.
"Shareholder" or "Shareholders" means, on any date of determination, the
shareholders of the Parent.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, other than a Multiple Employer Plan of the Borrower.
"Solvent" means, with respect to any Person, that on such date (a) the fair
value of the Property of such Person is greater than the total amount of
liabilities, including without limitation Contingent Liabilities of such Person,
(b) the present fair salable value of the assets of such Person on a going
concern basis is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's Property would constitute an unreasonably small capital.
"Special Counsel" means the law firm of Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C.,
Dallas, Texas, or such other individual or firm acting as special counsel to
Administrative Agent, as designated by Administrative Agent from time to time.
24
"Subordinated Debt" means Debt for Borrowed Money of the Borrower, any
Subsidiary of the Borrower or the Parent, that is subordinated to the
Obligations hereunder in accordance with the terms and provisions of the
Subordination Agreement substantially in the form of Exhibit I attached hereto.
---------
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) 50% or more of:
(a) the outstanding capital stock having voting power to elect a
majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency),
(b) the interest in the capital or profits of such partnership or
joint venture, or
(c) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by such Person, by such Person
and one or more of its Subsidiaries or by one or more of such Person's
Subsidiaries.
"Subsidiary Guaranty" means the Guaranty, executed by each Subsidiary of
the Borrower, guarantying payment and performance of the Obligations,
substantially in the form of Exhibit G attached hereto, as such agreement may be
---------
amended, modified, renewed or extended from time to time.
"Synthetic Lease" means any lease entered into in connection with the lease
or acquisition of fixed assets which is treated under GAAP as an operating lease
but for Tax purposes as a capital lease.
"Taxes" means all taxes, assessments, imposts, fees, or other charges at
any time imposed by any Laws or Tribunal.
"Tenant Lease Revenue" means, with respect to each Tenant Lease for the
most recently completed calendar month, all revenues generated by such Tenant
Lease for such month.
"Tenant Leases" means each of the leases of space on any Tower of the
Borrower or any Subsidiary of the Borrower now existing or hereafter created or
acquired, including, without limitation, those leases listed on
Schedule 5.01(w) hereto.
----------------
"Term Loan A Advance" means the initial advance and any of the Refinancing
Advances made under the Term Loan A.
"Term Loan B Advance" means the initial advance and any of the Refinancing
Advances made under the Term Loan B.
25
"Term Loan A" means the term loan made by the Lenders pursuant to Section
2.01(b) of this Agreement.
"Term Loan B" means the term loan made by the Lenders pursuant to Section
2.01(c) of this Agreement.
"Term Loan A Initial Advance" has the meaning set forth in Section 2.01(b)
hereof.
"Term Loan B Initial Advance" has the meaning set forth in Section 2.01(c)
hereof.
"Term Loan A Note" means each Note of the Borrower evidencing Term Loan A
Advances hereunder, substantially in the form of Exhibit A-2 hereto with respect
-----------
to Term Loan A Advances made under the Term Loan A, together with any extension,
renewal or amendment thereof, or substitution therefor.
"Term Loan B Note" means each Note of the Borrower evidencing Term Loan B
Advances hereunder, substantially in the form of Exhibit A-3 hereto with respect
-----------
to Term Loan B Advances made under the Term Loan B, together with any extension,
renewal or amendment thereof, or substitution therefor.
"Term Loan A Specified Percentage" means, as to any Lender, the percentage
of the outstanding portion of the Term Loan A held by such Lender on any date of
determination, or as adjusted or specified (i) in any Assignment and Acceptance
or (ii) in any amendment to this Agreement.
"Term Loan B Specified Percentage" means, as to any Lender, (a) prior to
the initial Term Loan B Advance, the percentage indicated beside its name on the
signature pages hereof designated as its Term Loan B Specified Percentage, or as
adjusted or specified (i) in any Assignment and Acceptance or (ii) in any
amendment to this Agreement, and (b) after the initial Term Loan B Advance, the
percentage of the outstanding portion of the Term Loan B held by such Lender on
any date of determination (after giving effect to assignments in accordance with
the terms of Section 11.04 hereof).
"Total Debt" means all Debt for Borrowed Money of the Borrower, the Parent
and any Subsidiary of the Borrower which would be shown on a balance sheet in
accordance with GAAP, including, without limitation, (a) Capital Lease
obligations, (b) obligations to pay the deferred purchase price of property and
services (but excluding trade payables that are less than 90 days old and any
thereof that are being contested in good faith), (c) Debt of any other Person
secured by a Lien on the property of the Borrower and the Parent or any
Subsidiary of the Borrower and the Parent, (d) Contingent Liabilities, and (e)
Withdrawal Liability.
"Total Specified Percentage" means, as to any Lender on any date of
determination, the percentage that the sum of such Lender's outstanding (a)
Revolver Advances bears to the aggregate outstanding amount of all Revolver
Advances plus (b) Term Loan A Advances, Term Loan B Advances and Canada Term
Loan Advances bears to the aggregate outstanding amount of Term Loan A Advances,
Term Loan B Advances and Canada Term Loan Advances made by all Lenders
hereunder, provided that, if there are no outstanding Revolver Advances
hereunder
26
on any such date, subsection (a) above for any such Lender shall be instead an
amount equal to the percentage that the sum of its Revolver Specified Percentage
of the Commitment bears to the aggregate Commitments of all Lenders on such
date.
"Tower" means each tower owned or managed by the Borrower or any Subsidiary
of the Borrower, and each rooftop or other site owned or managed by the Borrower
or any Subsidiary of the Borrower in the ordinary course of business.
"Tower Cash Flow" means, with respect to each Tower for the most recently
completed calendar month, the remainder of (a) the aggregate amount of all
Tenant Lease Revenues generated by all Tenant Leases relating to such Tower for
such month, plus (b) the aggregate amount of all Tenant Lease Revenues generated
by all newly executed or acquired leases relating to such Tower as if such
leases were effective as of the beginning of such calendar month minus (c) Tower
level cash operating expenses for such Tower for such month.
"Tribunal" means any state, commonwealth, federal, foreign, territorial, or
other court or government body, subdivision, agency, department, commission,
board, bureau, or instrumentality of a governmental body.
"Type" refers to the distinction between Advances bearing interest at the
Base Rate and LIBOR Rate.
"UCC" means the Uniform Commercial Code as adopted in the State of Texas on
the Closing Date.
"Unavailable Commitment" means (a) prior to June 30, 2001, $200,000,000 (as
such amount may be reduced from time to time as a result of the reallocation of
any portion of the Unavailable Commitment to the Commitment in accordance with
the terms of Section 2.18 hereof), and (b) on and after June 30, 2001, $0.00.
"Withdrawal Liability" has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
1.02. Accounting and Other Terms. All accounting terms used in this
Agreement which are not otherwise defined herein shall be construed in
accordance with GAAP on a consolidated basis for the Parent, the Borrower and
its Subsidiaries, unless otherwise expressly stated herein. References herein to
one gender shall be deemed to include all other genders. Except where the
context otherwise requires, (a) definitions imparting the singular shall include
the plural and vice versa and (b) all references to time are deemed to refer to
Dallas time.
27
ARTICLE II. THE LOAN FACILITIES
2.01. The Loans.01.
(a) The Revolver Loan. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make Advances to the
Borrower on a Business Day during the period from the Closing Date to the
First Maturity Date, in an aggregate principal amount not to exceed at any
time outstanding such Lender's Revolver Specified Percentage of the
Commitment. Subject to the terms and conditions of this Agreement, the
Borrower may borrow, repay and reborrow the Revolver Advances; provided,
--------
however, that at no time shall the sum of all outstanding Revolver Advances
-------
exceed the Commitment.
(b) Term Loan A. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make a Term Loan A
available to the Borrower on the Closing Date in an aggregate principal
amount equal to such Lender's Term Loan A Specified Percentage of
$125,000,000. The Term Loan A must be borrowed in one initial Advance only
(the "Term Loan A Initial Advance"), which such Term Loan A Initial Advance
must be made on the Closing Date. Once borrowed and repaid, no Term Loan A
Advance may be reborrowed.
(c) Term Loan B. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make a Term Loan B
available to the Borrower on the Closing Date in an aggregate principal
amount equal to such Lender's Term Loan B Specified Percentage of
$110,000,000. The Term Loan B must be borrowed in one initial Advance only
(the "Term Loan B Initial Advance"), which such Term Loan B Initial Advance
must be made on the Closing Date. If the Borrower does not borrow the Term
Loan B Initial Advance on the Closing Date, the obligations of the Lenders
to make the Term Loan B available under this Section 2.01(c) shall
terminate. Once borrowed and repaid, no Term Loan B Advance may be
reborrowed.
2.02. Making Advances.
(a) Each Borrowing of Advances shall be made upon the written notice
of the Borrower, received by Administrative Agent not later than (i) 10:00
a.m. three Business Days prior to the date of the proposed Borrowing, in
the case of LIBOR Advances and (ii) 10:00 a.m. on the date of such
Borrowing, in the case of Base Advances. Each such notice of a Borrowing
(a "Borrowing Notice") shall be by telecopy or telephone, promptly
confirmed by letter, in substantially the form of Exhibit D hereto
---------
specifying therein:
(i) the date of such proposed Borrowing, which shall be a
Business Day;
(ii) the Type of Advances of which the Borrowing is to be
comprised, and whether such Borrowing is a Revolver Advance, a Term Loan A
Advance or a Term Loan B Advance (provided that, other than with respect to
the Term Loan A Initial
28
Advance and the Term Loan B Initial Advance, all such borrowings under the
Term Loan A and the Term Loan B shall be Refinancing Advances);
(iii) the amount of such proposed Borrowing which, (A) in the
case of Advances under the Revolver Loan, shall not exceed the unused
portion of the Commitment, in the case of the Term Loan A Initial Advance,
shall not exceed the Term Loan A amount of $125,000,000, and in the case of
the Term Loan B Initial Advance, shall not exceed the Term Loan B amount of
$110,000,000, (B) shall, in the case of a Borrowing of Base Advances, be in
an amount of not less than $500,000 or an integral multiple of $50,000 in
excess thereof (or any lesser amount if such amount is the remaining
undrawn portion under the Commitment) and (C) shall, in the case of a
Borrowing of LIBOR Advances, be in an amount of not less than $5,000,000 or
an integral multiple of $100,000 in excess thereof; and
(iv) if the Borrowing is to be comprised of LIBOR Advances, the
duration of the initial Interest Period applicable to such Advances.
If the Borrowing Notice fails to specify the duration of the initial
Interest Period for any Borrowing comprised of LIBOR Advances, such Interest
Period shall be three months. Administrative Agent shall promptly notify Lenders
of each such notice. Each Lender shall, before 1:00 p.m. on the date of each
Advance hereunder (other than a Refinancing Advance), make available to
Administrative Agent, at its office at Bank of America Plaza, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, such Lender's Applicable Specified Percentage of the
aggregate Advances to be made on that day in immediately available funds.
(b) Unless any applicable condition specified in Article IV has not been
satisfied, Administrative Agent will make the funds promptly available to the
Borrower (other than with respect to a Refinancing Advance) by wiring such
amounts pursuant to any wiring instructions specified by the Borrower to the
Administrative Agent in writing.
(c) After giving effect to any Borrowing, (i) there shall not be more than
ten different Interest Periods in effect and (ii) the aggregate principal amount
of outstanding Revolver Advances shall not exceed the Commitment.
(d) No Interest Period applicable to any Revolver Advance and Term Loan A
Advance shall extend beyond the First Maturity Date, and no Interest Period
applicable to any Term Loan B Advance shall extend beyond the Final Maturity
Date.
(e) Unless a Lender shall have notified Administrative Agent prior to the
date of any Advance that it will not make available its Applicable Specified
Percentage of any such Advance (that is not a Refinancing Advance), the
Administrative Agent may assume that such Lender has made the appropriate amount
available in accordance with Section 2.02(a) hereof, and Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent any Lender shall not have made such
amount available to Administrative Agent, such Lender and the Borrower severally
agree to repay to Administrative Agent immediately on demand such corresponding
amount together with interest
29
thereon, from the date such amount is made available to the Borrower until the
date such amount is repaid to Administrative Agent, at (i) in the case of the
Borrower, the Base Rate, and (ii) in the case of such Lender, the Federal Funds
Rate.
(f) The failure by any Lender to make available its Applicable Specified
Percentage of any Advance hereunder shall not relieve any other Lender of its
obligation, if any, to make available its Applicable Specified Percentage of any
Advance. In no event, however, shall any Lender be responsible for the failure
of any other Lender to make available any portion of any Advance.
(g) The Borrower shall indemnify each Lender against any Consequential Loss
incurred by each Lender as a result of (i) any failure to fulfill, on or before
the date specified for the Advance, the conditions to the Advance set forth
herein or (ii) the Borrower's requesting that an Advance not be made on the date
specified in the Borrowing Notice.
2.03. Evidence of Debt for Borrowed Money.
(a) (i) The Revolver Advances made by each Lender shall be evidenced by a
Note in the amount of such Lender's Revolver Specified Percentage of
$235,000,000 (as the same may be modified pursuant to Section 11.04 hereof)
in the form of Exhibit A-1 hereto.
-----------
(ii) The Term Loan A Advances made by each Lender shall be evidenced
by a Note in the amount of such Lender's Term Loan A Specified Percentage
of $125,000,000 (as the same may be modified pursuant to Section 11.04
hereof) in the form of Exhibit A-2 hereto.
-----------
(iii) The Term Loan B Advances made by each Lender shall be evidenced
by a Note in the amount of such Lender's Term Loan B Specified Percentage
of $110,000,000 (as the same may be modified pursuant to Section 11.04
hereof) in the form of Exhibit A-3 hereto.
-----------
(b) Administrative Agent's and each Lender's records shall be presumptive
evidence as to amounts owed Administrative Agent and such Lender under the Notes
and this Agreement. The Borrower shall maintain a Register of each Note and
each Person who is owed any principal or interest, and each assignee thereof, in
accordance with the terms of Sections 11.03 and 11.04 hereof, but the Borrower
shall have no liability or obligation resulting from errors or mistakes in such
Register to the extent that the Borrower has not received notice of assignment
or transfer in accordance with the terms of Section 11.04 hereof.
2.04. Optional Prepayments.
30
(a) The Borrower may, upon at least two Business Days prior written notice
to Administrative Agent stating the proposed date and aggregate principal amount
of the prepayment, prepay the outstanding principal amount of any Advances in
whole or in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid without premium or penalty other than any
Consequential Loss; provided, however, that in the case of a prepayment of a
-------- -------
Base Advance, the notice of prepayment may be given by telephone by 10:00 a.m.
on the date of prepayment. Each partial prepayment shall, in the case of Base
Advances, be in an aggregate principal amount of not less than $500,000 or a
larger integral multiple of $50,000 in excess thereof and, in the case of LIBOR
Advances, be in an aggregate principal amount of not less than $5,000,000 or a
larger integral multiple of $100,000 in excess thereof. If any notice of
prepayment is given, the principal amount stated therein, together with accrued
interest on the amount prepaid and the amount, if any, due under Section 2.12
and Section 2.14 hereof, shall be due and payable on the date specified in such
notice unless the Borrower revokes its notice, provided that, if the Borrower
revokes its notice of prepayment prior to such date specified, the Borrower
shall reimburse the Administrative Agent for the account of all Lenders for all
Consequential Losses suffered by each Lender as a result of the Borrower's
failure to prepay. A certificate of each Lender claiming compensation under
this Section 2.04(a), setting forth in reasonable detail the calculation of the
additional amount or amounts to be paid to it hereunder shall be presumptive
evidence of the validity of such claim.
(b) No prepayments of Revolver Advances made solely pursuant to this
Section 2.04 shall cause the Commitment to be reduced. Prepayments of Term Loan
A Advances and Term Loan B Advances may not be reborrowed. All prepayments made
hereunder shall be allocated in accordance with the terms and conditions of
Section 2.13(f) hereof.
2.05. Mandatory Prepayments.
(a) Excess Cash Flow. Commencing April 30, 2000 and continuing on each
April 30 thereafter, the Borrower shall pay to Administrative Agent for the
Ratable account of Lenders to repay the Obligations, an amount equal to (i) 50%
of Excess Cash Flow for the preceding fiscal year if the Leverage Ratio
calculated at the end of the same period is less than 4.00 to 1.00, or (b) 75%
of Excess Cash Flow for the preceding fiscal year if the Leverage Ratio
calculated at the end of the same period is greater than or equal to 4.00 to
1.00.
31
(b) Additional Equity and Allowed Debt. To the extent that the Parent,
the Borrower or any of its Subsidiaries issues any public or private
indebtedness, or equity securities (except equity permitted to be issued by the
Parent in Section 8.11 hereof and Debt permitted to be incurred by the Parent
under Section 8.02(c) hereof, but only to the extent in each case that such Debt
and equity when added together do not exceed $250,000,000 in the aggregate over
the term of this Agreement) (this provision shall not in and of itself permit
the Borrower to consummate any of the above described transactions), then,
unless the Net Proceeds therefrom are used, within 180 days thereafter, for
Permitted Acquisitions or for Capital Expenditures relating to Towers, the
Borrower and its Subsidiaries shall immediately after the expiration of such
180-day period use the Net Proceeds of any such transaction to repay Advances
hereunder. All prepayments made pursuant to this Section 2.05(b) shall be
applied to reduce outstanding Advances, and shall reduce the Commitment in
accordance with the terms of Section 2.11(c)(ii) hereof (if applied to the
Commitment by the terms of Section 2.13(f) hereof). Upon the occurrence of a
"Change of Control" as that term is defined in the Indenture, the Borrower will
repay all Advances and Obligations hereunder (and the Commitment shall
correspondingly reduce to zero in accordance with the terms of Section
2.11(c)(iv) hereof).
(c) Asset Sales. To the extent that the Parent, the Borrower or any of
its Subsidiaries consummates any sale of any asset or any of its Properties
other than in the ordinary course of business, then unless the Net Proceeds
therefrom are used, within 180 days thereafter, for Permitted Acquisitions or
for Capital Expenditures relating to Towers, the Borrower and its Subsidiaries
shall immediately after the expiration of the 180-day period use the Net
Proceeds of any such transaction to repay Advances hereunder. All prepayments
made pursuant to this Section 2.05(c) shall be applied to reduce outstanding
Advances and, such prepayment shall also reduce the Commitment in accordance
with the terms of Section 2.11(c)(iii) hereof (if applied to the Commitment by
the terms of Section 2.13(f) hereof).
(d) Outstandings in Excess of the Commitment. To the extent that the
outstanding aggregate amount of Revolver Advances at any time exceed the
Commitment, the Borrower shall pay to Administrative Agent for the account of
Lenders in their Revolver Specified Percentages, such excess amount necessary to
reduce the outstanding aggregate Revolver Advances to an amount less than, or
equal to, the Commitment.
(e) Mandatory Prepayments, Generally. Unless otherwise directed by the
Borrower, any prepayments made pursuant to this Section 2.05 shall be first
applied to Base Advances and then to LIBOR Advances, without premium or penalty,
except the Borrower must pay together with any such prepayments, any
Consequential Losses. Application of all payments and prepayments shall be
applied in accordance with the terms of Section 2.13(f) hereof.
2.06. Repayment.
(a) LIBOR Advances. The principal amount of each LIBOR Advance is due and
payable on the last day of the applicable Interest Period, which principal
payment may be made by means of a Refinancing Advance (subject to the other
provisions of this Agreement).
32
(b) Reduction of Commitment On the date of each reduction of the
Commitment pursuant to Section 2.11 hereof, the Borrower shall immediately repay
the Obligations in an amount equal to the difference by which the sum of the
amount of all Revolver Advances outstanding on the date of reduction exceeds the
Commitment, as reduced, which principal payment may not be made by means of a
Refinancing Advance.
(c) Maturity Dates. All outstanding Advances under the Revolver Loan and
the Term Loan A, and all other Obligations in connection with the Revolver Loan
and the Term Loan A, shall be due and payable in full on the First Maturity
Date. All outstanding Advances under the Term Loan B, and all other outstanding
Obligations, shall be due and payable in full on the Final Maturity Date.
(d) Installment Repayments of Term Loan A and Term Loan B. After June 30,
2001, each of the Term Loan A and Term Loan B shall be repaid by the Borrower on
each Quarterly Date, in an amount on each such date equal to the percentage set
forth below of the outstanding Term Loan A Advances and the outstanding Term
Loan B Advances, respectively, in effect on June 30, 2001, in each case opposite
each such Quarterly Date, until each of the Term Loan A and the Term Loan B has
been repaid in full. The first such installment repayment shall occur on
September 30, 2001, and continue thereafter as follows:
Repayment Percentage is equal to the
Outstanding Amount of the Term Loan
Date of Installment Repayment A Advances and the outstanding
of the Term Loan A and the Term Loan B Advances, respectively,
Term Loan B in effect on June 30, 2001
----------------------------- -------------------------------------
Term Loan A Term Loan B
----------- -----------
September 30, 2001 5.00% 0.50%
December 31, 2001 5.00% 0.50%
March 31, 2002 3.75% 0.25%
June 30, 2002 3.75% 0.25%
September 30, 2002 3.75% 0.25%
December 31, 2002 3.75% 0.25%
March 31, 2003 4.50% 0.25%
June 30, 2003 4.50% 0.25%
September 30, 2003 4.50% 0.25%
December 31, 2003 4.50% 0.25%
March 31, 2004 5.50% 0.25%
June 30, 2004 5.50% 0.25%
September 30, 2004 5.50% 0.25%
December 31, 2004 5.50% 0.25%
March 31, 2005 6.25% 0.25%
June 30, 2005 6.25% 0.25%
September 30, 2005 6.25% 0.25%
December 31, 2005 6.25% 0.25%
33
March 31, 2006 5.00% 0.25%
June 30, 2006 5.00% 0.25%
September 30, 2006 0.00% 0.25%
December 31, 2006 0.00% 0.25%
March 31, 2007 0.00% 47.00%
June 30, 2007 0.00% 47.00%
(e) Repayments, Generally. Any repayments made pursuantto this Section
2.06 shall be first applied to Base Advances and then to LIBOR Advances in the
order of maturity, without premium or penalty, except the Borrower must pay
together with any such prepayments, any Consequential Losses. All repayments
shall be allocated among the Loans in accordance with the terms of Section
2.13(f) hereof.
2.07. Interest. Subject to Section 2.08 and Section 11.08 hereof, the
Borrower shall pay interest on the unpaid principal amount of each Advance from
the date of such Advance until such principal shall be paid in full, at the
following rates per annum:
(a) Base Advances. Base Advances shall bear interest at a rate per
annum equal to the Base Rate as in effect from time to time. If the amount
of interest payable in respect of any interest computation period is
reduced to the Highest Lawful Rate and the amount of interest payable in
respect of any subsequent interest computation period would be less than
Maximum Amount, then the amount of interest payable in respect of such
subsequent interest computation period shall be automatically increased to
the Maximum Amount; provided that at no time shall the aggregate amount by
--------
which interest paid has been increased pursuant to this sentence exceed the
aggregate amount by which interest has been reduced pursuant to this
sentence.
(b) LIBOR Advances. LIBOR Advances shall bear interest at the rate
per annum equal to the LIBOR Rate applicable to such Advance.
(c) Payment Dates. Accrued and unpaid interest on Base Advances shall
be paid quarterly in arrears on each Quarterly Date and on the First
Maturity Date with respect to Advances under the Revolver Loan and the Term
Loan A and the Final Maturity Date with respect to Advances made under the
Term Loan B. Accrued and unpaid interest in respect of each LIBOR Advance
shall be paid on the last day of the appropriate Interest Period and on the
date of any prepayment or repayment of such Advance; provided, however,
-------- -------
that if any Interest Period for a LIBOR Advance exceeds three months,
interest shall also be paid on the date which falls three months after the
beginning of such Interest Period.
2.08. Default Interest. During the continuation of any Event of
Default, the Borrower shall pay, on demand, interest (after as well as before
judgment to the extent permitted by Law) on the principal amount of all Advances
outstanding and on all other Obligations due and unpaid hereunder at a per annum
rate equal to the lesser of the (a) the Highest Lawful Rate and (b) (i) to the
extent any such Advance outstanding at such time is bearing interest at the
LIBOR Rate, then the applicable LIBOR Rate plus 3.00% to the end of its
34
Interest Period, and (ii) for all other outstanding Advances, the Base Rate plus
2.00%. LIBOR Advances shall not be available for selection by the Borrower
during the continuance of an Event of Default.
2.09. Continuation and Conversion Elections.
(a) The Borrower may upon irrevocable written notice to Administrative
Agent and subject to the terms of this Agreement:
(i) elect to convert, on any Business Day, all or any portion of
outstanding Base Advances (in an aggregate amount not less than $500,000 or
an integral multiple of $50,000 in excess thereof) into LIBOR Advances; or
(ii) elect to convert at the end of any Interest Period therefor,
all or any portion of outstanding LIBOR Advances comprised in the same
Borrowing (in an aggregate amount not less than $5,000,000 or an integral
multiple of $100,000 in excess thereof) into Base Advances; or
(iii) elect to continue, at the end of any Interest Period
therefor, any LIBOR Advances;
provided, however, that if the aggregate amount of outstanding LIBOR
-------- -------
Advances comprised in the same Borrowing shall have been reduced as a result of
any payment, prepayment or conversion of part thereof to an amount less than
$5,000,000, the LIBOR Advances comprised in such Borrowing shall automatically
convert into Base Advances at the end of each respective Interest Period.
(b) The Borrower shall deliver a notice of conversion or continuation (a
"Conversion or Continuation Notice"), in substantially the form of Exhibit E
---------
hereto, to Administrative Agent not later than 10:00 a.m. (i) three Business
Days prior to the proposed date of conversion or continuation, if the Advances
or any portion thereof are to be converted into or continued as LIBOR Advances;
and (ii) on the Business Day of the proposed conversion, if the Advances or any
portion thereof are to be converted into Base Advances.
Each such Conversion or Continuation Notice shall be by telecopy or
telephone, promptly confirmed by letter, specifying therein:
(i) the proposed date of conversion or continuation and whether
such continuation or conversion is a Revolver Advance, a Term Loan A
Advance or a Term Loan B Advance (or any combination thereof);
(ii) the aggregate amount of Advances to be converted or
continued;
(iii) the nature of the proposed conversion or continuation; and
35
(iv) the duration of the applicable Interest Period.
(c) If, upon the expiration of any Interest Period applicable to LIBOR
Advances, the Borrower shall have failed to select a new Interest Period to be
applicable to such LIBOR Advances or if an Event of Default shall then have
occurred and be continuing, the Borrower shall be deemed to have elected to
convert such LIBOR Advances into Base Advances effective as of the expiration
date of such current Interest Period.
(d) Notwithstanding any other provision contained in this Agreement, after
giving effect to any conversion or continuation of any Advances, there shall not
be outstanding Advances with more than ten different Interest Periods. The
Borrower shall indemnify each Lender against any Consequential Loss incurred by
each Lender as a result of (i) any failure to fulfill, on or before the date
specified for a conversion or continuation of an Advance, the conditions to the
Advance set forth herein or (ii) the Borrower's requesting that a conversion or
continuation of an Advance not be made on the date specified in the Conversion
or Continuation Notice.
2.10. Fees and the Fee Letter.
(a) Facility Fee. Subject to Section 11.08 hereof, the Borrower shall pay
to Administrative Agent for the account of each of the Lenders such origination
and facility fees as are agreed to in writing by the Borrower, the
Administrative Agent and the Lenders, including those set forth in the Fee
Letter.
(b) Commitment Fee. Subject to Section 11.08 hereof, the Borrower shall
pay to Administrative Agent for the Ratable account of Lenders having Revolver
Specified Percentages in excess of zero, a commitment fee on the average daily
amount of the sum of (i) the difference between the Commitment and the sum of
all Revolver Advances outstanding, plus (ii) until December 31, 1999, the
difference between $125,000,000 and the sum of all Term Loan A Advances
outstanding, in each case at a per annum rate based on usage equal to the
percentage set forth below, applicable in the following circumstances, payable
in each case in arrears on each Quarterly Date and on the First Maturity Date,
commencing with the first Quarterly Date after the Closing Date, and continuing
until the First Maturity Date:
Percentage of Usage
of the Revolver Loan
and the Term Loan A Commitment Fee Percentage
------------------- -------------------------
If outstanding Revolver
Advances and Term Loan A
Advances are less than 25%
of the Commitment
plus $125,000,000 1.25%
36
If outstanding Revolver
Advances and Term Loan A
Advances are greater than 25%
of the Commitment
plus $125,000,000 but equal to
or less than 50% 0.75%
If outstanding Revolver
Advances and Term Loan A
Advances are greater than 50%
of the Commitment
plus $125,000,000 0.50%
(c) Other Fees and the Fee Letter. The Borrower shall pay such other fees
as are set forth in Article III hereof, in the Fee Letter and in any other Loan
Paper, in each case in accordance with the terms of such agreements. The
Borrower agrees to perform, over the term of this Agreement, all terms,
conditions and agreements of the Fee Letter in accordance with the terms
thereof.
2.11. Reduction of Commitment.
(a) Mandatory Termination of the Commitment. The Commitment shall reduce
to zero and terminate on the First Maturity Date.
(b) Mandatory Scheduled Reduction of the Commitment. After June 30, 2001,
the Commitment shall automatically reduce on each Quarterly Date, in a reduction
amount on each such date equal to the percentage set forth below of the
Commitment in effect on June 30, 2001, in each case opposite each such Quarterly
Date, until the Commitment has been reduced to zero. The first such automatic
reduction in the Commitment shall occur on September 30, 2001, and continue
thereafter as follows:
Reduction Percentage is equal to the Date of Automatic Reduction Percentage of
the Commitment in effect of the Commitment on June 30, 2001, and the Commitment
shall each be reduced to zero
Reduction Percentage is equal to the
Date of Automatic Reduction Percentage of the Commitment in effect
of the Commitment on June 30, 2001
--------------------------- -------------------------------------------
September 30, 2001 5.00%
December 31, 2001 5.00%
March 31, 2002 3.75%
June 30, 2002 3.75%
September 30, 2002 3.75%
December 31, 2002 3.75%
March 31, 2003 4.50%
June 30, 2003 4.50%
September 30, 2003 4.50%
December 31, 2003 4.50%
March 31, 2004 5.50%
37
June 30, 2004 5.50%
September 30, 2004 5.50%
December 31, 2004 5.50%
March 31, 2005 6.25%
June 30, 2005 6.25%
September 30, 2005 6.25%
December 31, 2005 6.25%
March 31, 2006 5.00%
June 30, 2006 5.00%
(c) Reduction of the Commitment. The Commitment shall be permanently
reduced from time to time:
(i) on the date of, and by the amount of, each Excess Cash Flow mandatory
prepayment required by Section 2.05(a) hereof,
(ii) on the date of, and by the amount of, each mandatory prepayment made
from the issuance of equity or debt, in each case only as required to be
prepaid by Section 2.05(b) hereof,
(iii) on the date of, and by the amount of, each mandatory prepayment made
from the sale of assets, in each case only as required to be prepaid by
Section 2.05(c) hereof, and
(iv) on the date of any occurrence of a "Change of Control" as that term is
defined in the Indenture, the Commitment will automatically be reduced to
zero and terminate.
No reduction in the Commitment set forth in 2.11(c) above shall reduce or
relieve the automatic scheduled reduction of the Commitment required by Section
2.11(b) above.
(d) Voluntary Reduction of the Commitment. The Borrower may from time to
time, upon notice to Administrative Agent not later than 1:00 p.m., five
Business Days in advance, terminate in whole or reduce in part the Commitment,
as designated by the Borrower; provided, however, that the Borrower shall pay
-------- -------
the accrued interest and the applicable Commitment Fee on the amount of such
reduction and all amounts due, and any partial reduction shall be in an
aggregate amount which is an integral multiple of $5,000,000. No voluntary
reduction in the Commitment permitted by this Section 2.11(d) shall reduce or
relieve the automatic scheduled reduction of the Commitment required by Section
2.11(b) above.
(e) Commitment Reductions, Generally. No prepayment under Section 2.04
hereof, required prepayment under Section 2.05 hereof or commitment reductions
under Sections 2.11(c) and (d) above shall reduce or relieve the scheduled
reduction required by Section 2.11(b) above. To the extent the outstanding
Revolver Advances exceed the Commitment after any reduction thereof, the
Borrower shall repay, on the date of such reduction, any such excess amount and
all accrued interest thereon, the applicable Commitment Fee on the amount of
such reduction and all amounts due. Once reduced or terminated, the Commitment
may not be increased or reinstated,
38
except in accordance with Section 2.18 hereof. Application of all reductions in
the Commitment shall be in accordance with the terms of Section 2.13(f) hereof.
2.12. Funding Losses. The Borrower may prepay the outstanding principal
balance of any Advance, in full at any time or in part from time to time in
accordance with the terms of Section 2.04 hereof, provided, that as a condition
--------
precedent to the Borrower's right to make, and any Lender's obligation to
accept, any such prepayment, each such prepayment shall be in the amount of 100%
of the principal amount to be prepaid, plus accrued unpaid interest thereon to
the date of prepayment, plus any other sums which have become due to
Administrative Agent and Lenders under the Loan Papers on or before the
prepayment date but have not been paid, plus (subject to Section 11.08 hereof)
any Consequential Loss.
The Borrower agrees that each Lender is not obligated to actually reinvest
the amount prepaid in any specific obligation as a condition to receiving any
Consequential Loss, or otherwise.
2.13. Computations and Manner of Payments.
(a) The Borrower shall make each payment hereunder and under the other
Loan Papers not later than 1:00 p.m. on the day when due in same day funds to
Administrative Agent, for the Ratable account of Lenders unless otherwise
specifically provided herein, at Administrative Agent's office at Bank of
America Plaza, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, for further credit to the
account of Pinnacle Towers Inc. No later than the end of each day when each
payment hereunder is made, the Borrower shall notify Xxxx Xxxxxxxxxxxxx, at
(000) 000-0000, or such other Person as Administrative Agent may from time to
time specify.
(b) Unless Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due hereunder that the
Borrower will not make payment in full, Administrative Agent may assume that
such payment is so made on such date and may, in reliance upon such assumption,
make distributions to Lenders. If and to the extent the Borrower shall not have
made such payment in full, each Lender shall repay to Administrative Agent
forthwith on demand the applicable amount distributed, together with interest
thereon at the Federal Funds Rate, from the date of distribution until the date
of repayment. The Borrower hereby authorizes each Lender, if and to the extent
payment is not made when due hereunder, to charge the amount so due against any
account of the Borrower with such Lender.
(c) Subject to Section 11.08 hereof, interest on LIBOR Advances under
the Loan Papers shall be calculated on the basis of actual days elapsed but
computed as if each year consisted of 360 days. Subject to Section 11.08 hereof,
interest on Base Advances, the Commitment Fee, and other amounts due under the
Loan Papers shall be calculated on the basis of actual days elapsed but computed
as if each year consisted of 365 or 366 days, as applicable. Such computations
shall be made including the first day but excluding the last day occurring in
the period for which such interest, payment or Commitment Fee is payable. Each
determination by Administrative Agent or a Lender of an interest rate, fee or
commission hereunder shall be
39
presumptive evidence of the validity of such claim. All payments under the Loan
Papers shall be made in United States dollars, and without setoff, counterclaim,
or other defense.
(d) Whenever any payment to be made hereunder or under any other Loan
Papers shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of interest or fees, if applicable;
provided, however, if such extension would cause payment of interest on or
-------- -------
principal of LIBOR Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Reference to any particular index or reference rate for determining
any applicable interest rate under this Agreement is for purposes of calculating
the interest due and is not intended as and shall not be construed as requiring
any Lender to actually obtain funds for any Advance at any particular index or
reference rate.
(f) Notwithstanding anything to the contrary herein or in any Loan
Paper, to the extent the Borrower makes any voluntary prepayment, or voluntary
reduction of the Commitment under Sections 2.04 or 2.11 hereof, or any mandatory
prepayment, or mandatory reduction of the Commitment under Sections 2.05 and
2.11 hereof, then such reduction of the Commitment or such prepayment shall be
applied as follows:
(i) so long as there exists no Default or Event of Default, all
voluntary Commitment reductions and all voluntary repayments and
prepayments shall be applied as directed by the Borrower, and in the
absence of direction by the Borrower, shall be deemed to prepay and reduce,
respectively (1) the Commitment and the Revolver Loan, until the Commitment
has been reduced to zero and the outstandings under the Revolver Loan have
been repaid in full, then (2) the Term Loan A and the Term Loan B, pro
rata, until all outstanding Term Loan A Advances and Term Loan B Advances
have been repaid in full and (3) to all remaining outstanding and unpaid
Obligations; provided that, so long as there exists no Default or Event of
Default, each Lender having a Term Loan B Specified Percentage in excess of
zero may elect to decline all voluntary prepayments made or allocated to
Term Loan B in accordance with the terms of this Agreement, in which case
such declined prepayments shall be allocated to the Revolver Loan and the
Term Loan A pro rata;
(ii) so long as there exists no Default or Event of Default, all
mandatory Commitment reductions and all mandatory repayments and
prepayments shall be applied pro rata among the Revolver Loan, the Term
Loan A and the Term Loan B, and then to all remaining outstanding
Obligations; provided that, so long as there exists no Default or Event of
Default, each Lender having a Term Loan B Specified Percentage in excess of
zero may elect to decline all mandatory prepayments made or allocated to
Term Loan B in accordance with the terms of this Agreement, in which case
such declined prepayments shall be allocated to the Revolver Loan and the
Term Loan A pro rata;
(iii) if there exists a Default or Event of Default, all mandatory
and voluntary Commitment reductions and mandatory and voluntary repayments
and prepayments shall
40
be applied pro rata among the Revolver Loan, the Term Loan A and the Term
Loan B, and then to all remaining outstanding Obligations; and
(iv) all Term Loan A and Term Loan B repayments and prepayments shall
be applied to installments due thereunder in the inverse order of maturity,
and all repayments and prepayments, and reductions to the Commitment shall
not affect the mandatory commitment reduction schedule set forth in Section
2.11(b) hereof.
2.14. Yield Protection; Changed Circumstances.
(a) If any Lender determines that either (i) the adoption, after the date
hereof, of any Applicable Law, rule, regulation or guideline regarding capital
adequacy and applicable to commercial banks or financial institutions generally
or any change therein, or any change, after the date hereof, in the
interpretation or administration thereof by any Tribunal, central bank or
comparable agency charged with the interpretation or administration thereof, or
(ii) compliance by any Lender (or Lending Office of any Lender) with any request
or directive made after the date hereof applicable to commercial banks or
financial institutions generally regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency has 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 such
Lender could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's policies with respect to capital adequacy) by
an amount reasonably deemed by such Lender to be material, then from time to
time, within fifteen days after demand by such Lender, the Borrower shall pay to
such Lender such additional amount or amounts as will adequately compensate such
Lender for such reduction. Each Lender will notify the Borrower of any event
occurring after the date of this Agreement which will entitle such Lender to
compensation pursuant to this Section 2.14(a) as promptly as practicable after
such Lender obtains actual knowledge of such event; provided, no Lender shall be
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liable for its failure or the failure of any other Lender to provide such
notification. A certificate of such Lender claiming compensation under this
Section 2.14(a), setting forth in reasonable detail the calculation of the
additional amount or amounts to be paid to it hereunder and certifying that such
claim is consistent with such Lender's treatment of similar customers having
similar provisions generally in their agreements with such Lender shall be
presumptive evidence of the validity of such claim. Each Lender shall use
reasonable efforts to mitigate the effect upon the Borrower of any such
increased costs payable to such Lender under this Section 2.14(a).
(b) If, after the date hereof, any Tribunal, central bank or other
comparable authority, at any time imposes, modifies or deems applicable any
reserve (including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit or similar requirement against
assets of, deposits with or for the amount of, or credit extended by, any
Lender, or imposes on any Lender any other condition affecting a LIBOR Advance,
the Notes, or its obligation to make a LIBOR Advance, or imposes on any Lender
any other condition affecting a Letter of Credit; and the result of any of the
foregoing is to increase the cost to such Lender of making or maintaining its
Letter of Credit, LIBOR Advances, or to reduce the amount of any sum received or
receivable by such Lender under this Agreement or under the
41
Notes, the Letters of Credit or reimbursement obligations by an amount deemed by
such Lender, to be material, then, within five days after demand by such Lender,
----
the Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased cost or reduction. Each Lender will
(i) notify the Borrower of any event occurring after the date of this Agreement
that entitles such Lender to compensation pursuant to this Section 2.14(b), as
promptly as practicable after such Lender obtains actual knowledge of the event;
provided, no Lender shall be liable for its failure or the failure of any other
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Lender to provide such notification and (ii) use good faith and reasonable
efforts to designate a different Lending Office for LIBOR Advances, of such
Lender if the designation will avoid the need for, or reduce the amount of, the
compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender. A certificate of such Lender claiming
compensation under this Section 2.14(b), setting forth in reasonable detail the
computation of the additional amount or amounts to be paid to it hereunder and
certifying that such claim is consistent with such Lender's treatment of similar
customers having similar provisions generally in their agreements with such
Lender shall be presumptive evidence of the validity of such claim. If such
Lender demands compensation under this Section 2.14(b), the Borrower may at any
time, on at least five Business Days' prior notice to such Lender (i) repay in
full the then outstanding principal amount of LIBOR Advances, of such Lender,
together with accrued interest thereon, or (ii) convert the LIBOR Advances to
Base Advances in accordance with the provisions of this Agreement; provided,
--------
however, that the Borrower shall be liable for the Consequential Loss arising
-------
pursuant to those actions.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation or administration of
any Law shall make it unlawful, or any central bank or other Tribunal shall
assert that it is unlawful, for a Lender to perform its obligations hereunder to
issue or maintain Letters of Credit, make LIBOR Advances or to continue to fund
or maintain LIBOR Advances hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower, (i) each LIBOR Advance will
automatically, upon such demand, convert into a Base Advance, (ii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended until such Lender notifies Administrative Agent and the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist, and (iii) the obligation of such Lender to make or
maintain Letters of Credit shall be suspended until such Lender notifies
Administrative Agent and the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist.
(d) Upon the occurrence and during the continuance of any Default or Event
of Default, (i) each LIBOR Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Advance and (ii) the
obligation of each Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended.
(e) If any Lender notifies Administrative Agent that the LIBOR Rate for
any Interest Period for any LIBOR Advances will not adequately reflect the cost
to such Lender of making, funding or maintaining LIBOR Advances for such
Interest Period, Administrative Agent shall promptly so notify the Borrower,
whereupon (i) each such LIBOR Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Advance and (ii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
shall be
42
suspended until such Lender notifies Administrative Agent that such Lender has
determined that the circumstances causing such suspension no longer exist and
Administrative Agent notifies the Borrower of such fact.
(f) Failure on the part of any Lender to demand compensation for any
increased costs, increased capital or reduction in amounts received or
receivable or reduction in return on capital pursuant to this Section 2.14 with
respect to any period shall not constitute a waiver of any Lender's right to
demand compensation with respect to such period or any other period, subject,
however, to the limitations set forth in this Section 2.14.
(g) The obligations of the Borrower under this Section 2.14 shall survive
any termination of this Agreement, provided that, in no event shall the Borrower
be required to make a payment under this Section 2.14 with respect to any event
of which the Lender making such claim had knowledge more than twelve months
prior to demand for such payment.
(h) Determinations by Lenders for purposes of this Section 2.14 shall be
presumptively correct. Any certificate delivered to the Borrower by a Lender
pursuant to this Section 2.14 shall include in reasonable detail the basis for
such Lender's demand for additional compensation and a certification that the
claim for compensation is consistent with such Lender's treatment of similar
customers having similar provisions generally in their agreements with such
Lender.
(i) Notwithstanding any other provision of this Agreement, no Lender not
organized under the Laws of the United States or any State (or which has a Bank
Affiliate not organized under the Laws of the United States or any State) shall
be entitled to compensation pursuant to this Section 2.14 with respect to any
amount which would otherwise be due under this Section 2.14 but which is the
result of an act of a Tribunal of the country in which such Lender or Bank
Affiliate is organized.
2.15. Use of Proceeds. The proceeds of all Revolver Advances borrowed
hereunder shall be solely used in connection with the acquisition of assets in
accordance with the terms of Section 1008(v) of the Indenture, such that all
Revolver Advances constitute in each case, Acquisition Debt or"Purchase Money
Secured Debt" (as defined in the Indenture) in accordance with the terms of the
Indenture, the other Parent Senior Notes Documentation and permitted fully
secured indebtedness under all Second Parent Issuance Documentation. The
proceeds of the initial Term Loan B Advance and all Term Loan A Advances shall
be available (and the Borrower shall use such proceeds) solely (i) with respect
to the initial Term Loan B Advance and any Term Loan A Advance made on the
Closing Date only, to refinance existing indebtedness of the Borrower, (ii) for
Permitted Acquisitions, (iii) for Capital Expenditures permitted under the terms
of this Agreement, (iv) for working capital and (v) for other lawful corporate
purposes. Notwithstanding the preceding sentences of this Section 2.15, any
Revolver Advance that constitutes a Qualified Facility Revolver Advance shall be
available (and the Borrower shall use such proceeds) solely (i) for Permitted
Acquisitions, (ii) for Capital Expenditures permitted under the terms of this
Agreement, (iii) for working capital and (iv) for other lawful corporate
purposes.
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2.16. Collateral and Collateral Call.
(a) Collateral. Payment of the Obligations (including the Canada
----------
Indebtedness and the Canada Guaranty) will be secured by (i) a first perfected
security interest in 100% of the Capital Stock of the Subsidiaries of the
Borrower and 100% of the Capital Stock of the Borrower, (ii) subject to
Permitted Liens and Section 6.15 hereof, a first perfected security interest in
all of the existing and future accounts (including without limitation, the
Tenant Leases), equipment, inventory and general intangibles (including all
existing and future Tenant Leases, and excluding any Interest Rate Protection
Agreement to which any Lender is a party, motor vehicles, bank accounts,
intellectual property and chattel paper) of the Borrower and its Subsidiaries,
(iii) Guaranties of the Obligations by each Guarantor, (iv) in accordance with
Section 6.15 hereof, deeds of trust and/or mortgages on all real property owned
by the Borrower and each Subsidiary of the Borrower, (v) certain pre-existing
leasehold deeds of trust and/or mortgages on Borrower's leasehold interest under
certain Ground Leases entered into or acquired by the Borrower before June 25,
1999, and (vi) cash on hand of the Parent, the Borrower and each Subsidiary of
the Borrower in excess of $10,000,000 (collectively, together with all other
Properties or assets of the Borrower, Subsidiaries and other Persons securing
the Obligations from time to time, the "Collateral"). The Borrower agrees that
it will, and will cause its Subsidiaries and the Parent to, execute and deliver,
or cause to be executed and delivered, such documents as the Administrative
Agent may from time to time reasonably request to create and perfect a first
Lien for the benefit of the Administrative Agent and the Lenders in the
Collateral, provided that, notwithstanding the foregoing, the Borrower is not
obligated to grant or perfect any new leasehold deed of trust or leasehold
mortgage.
(b) Collateral Call. The Borrower agrees: (i) upon the creation,
---------------
formation or acquisition of any direct or indirect Subsidiary of the Borrower,
to immediately pledge 100% of the Capital Stock of any such Subsidiary to secure
the Obligations, pursuant to a pledge agreement substantially in the form of
Exhibit J hereto, and to promptly deliver to the Administrative Agent all
---------
certificates or other documentation evidencing 100% of such Capital Stock and,
if such Capital Stock is stock of a corporation, together with stock powers
executed in blank, and to cause such new Subsidiary to execute a Guaranty of the
Obligations in the form of Exhibit G hereto and (ii) to, and agrees to cause the
---------
Subsidiaries of the Borrower to, grant the Administrative Agent and the Lenders
from time to time, a Lien on any of the Property of the Borrower or any
Subsidiary of the Borrower that is not already subject to a perfected Lien,
excluding all leasehold real estate. The Borrower shall comply with Section
6.15(a), (b) and (d) hereof with respect to all owned or acquired real estate by
the Borrower or any Subsidiary from time to time. The Borrower shall, and shall
cause the Subsidiaries of the Borrower to, provide for the benefit of
Administrative Agent and Lenders securing the Obligations in any other Property
of the Borrower and its Subsidiaries, all items to fully effect the foregoing,
including, without limitation, providing the Administrative Agent with UCC-1's
together with, new security agreements, appraisals, hazard insurance, UCC-11
searches, Tax and Lien searches, intellectual property documentation and
registration and other similar types of documents, consents, authorizations,
Licenses, instruments and agreements relating to all Property of the Borrower
and its Subsidiaries as reasonably requested by the Administrative Agent from
time to time, and at the request of the Administrative Agent, opinions of local
legal counsel with respect to the execution and filing thereof, and perfection
of Liens created thereby. Notwithstanding the
44
foregoing, in no event shall the Borrower be obligated to grant, or perfect, any
new leasehold mortgage or leasehold deed of trust.
2.17. Replacement of a Lender. If any Lender has requested compensation or
reimbursement in accordance with the terms of Section 2.14 hereof or in
accordance with the terms of Section 11.07 hereof and (a) such request is not
the result of any uniform changes in the statutes or regulations for capital
adequacy, (b) there exists no Default or Event of Default hereunder, and (c) the
Borrower and such Lender are unable to reach a written agreement regarding such
request within 30 days following written notice by such Lender to the Borrower
and the Administrative Agent of such request, then after the expiration of 30
days following the delivery of the notice under Section 2.14 or Section 11.07
hereof, the Borrower may replace such Lender in whole with another Eligible
Assignee reasonably acceptable to Administrative Agent pursuant to an Assignment
and Acceptance and in accordance with Section 11.04 hereof. Until such time as
any Lender is replaced by the Borrower, the Borrower shall reimburse or
compensate such Lender in accordance with the terms of Section 2.14 hereof and
Section 11.07 hereof.
2.18. Conditions Precedent to the Increase of the Commitment.
Prior to June 30, 2001, upon written request by the Borrower to the
Administrative Agent and any other existing Lender of its choice (and not all
Lenders) not less than ten Business Days prior to the proposed effective date of
the proposed increase (or, in the case of each proposed lender, such lesser
notice as any proposed lender is willing to accept), the Commitment shall,
subject to the further terms and conditions set forth below, increase to a
maximum of $435,000,000 in the manner set forth below:
(a) On any date of proposed increase, the representations and
warranties contained in Article V hereof are true and correct on such date,
as though made on and as of such date, except to the extent expressly made
only as of a prior date; and
(b) On any date of proposed increase, no Default or Event of Default
shall exist on any such date, and no Default or Event of Default would
result from the such increase in the Commitment and the subsequent Revolver
Advance to the Borrower up to the amount of the Commitment; and
(c) On any date of proposed increase, there shall have occurred no
Material Adverse Change since December 31, 1998; and
(d) On any date of proposed increase, the sum of all Revolver Advances
outstanding (after giving effect to any proposed Revolver Advance to be
made on such date) shall not exceed the Commitment; and
(e) The proposed increase shall occur prior to June 30, 2001 and the
Commitment as increased shall not be in excess of the sum of the Commitment
prior to such increase plus the Unavailable Commitment prior to such
increase; and
45
(f) Upon satisfaction of each of the conditions precedent in this
Section 2.18, the Borrower shall be entitled to increase the Commitment not
more than five times, in an aggregate amount for such increases not to
exceed the Unavailable Commitment . Each Lender specified by the Borrower
shall have received not less than 5 Business Days' prior written notice
from the Borrower requesting such Commitment increase. Each such Lender
electing to participate in such Commitment increase shall commit to an
amount not less than $5,000,000, but shall accept any allocation amount
designated by the Borrower and the Administrative Agent that is equal to or
less than its proposed portion of the Commitment increase; and
(g) Notwithstanding anything herein or in any other Loan Paper to the
contrary, (i) the Borrower is not obligated to notify each Lender of, or to
allocate to any existing Lender any portion of, the proposed increase, and
the Borrower and the Administrative Agent may agree to add other creditors
in connection with any such proposed increase. Each existing Lender agrees
and acknowledges that new creditors may be allocated all or any portion of
the proposed increase upon the determination of the Borrower and the
Administrative Agent; and
(h) Each of the proposed increases shall be in an aggregate minimum
amount of $10,000,000 and $5,000,000 multiples thereof; and
(i) The Administrative Agent shall have received a certificate from
the Borrower to the effect that (i) such increase has received all required
regulatory approvals, if necessary, and is in compliance with all
applicable Laws, and (ii) no other approvals or consents from any Person
are required by any such Person except to the extent they have been
received; and
(j) Each new Lender (including any new Lenders party hereto) shall
have received a promissory Note evidencing its new Revolver Specified
Percentage of the Commitment, and the Borrower and each new Lender agrees
to execute any and all such documents deemed necessary by the
Administrative Agent in order to effectuate this Section 2.18 (whether UCC-
1s, new documentation relating to any Collateral, Guaranty or otherwise);
and
(k) On the date of increase, the Administrative Agent shall deliver to
each Lender evidence of new Revolver Specified Percentages adjusted to give
effect to the increase in the Commitment; and
(l) On or prior to the date of increase, each new lender being added
to the credit facility shall deliver to the Borrower and the Administrative
Agent documentation acceptable to the Administrative Agent evidencing such
new Lender's acceptance of this Agreement and all the other Loan Papers in
form and substance reasonably acceptable to the Administrative Agent (and
making such lender a party to this Agreement and the other Loan Papers);
and
46
(m) The Administrative Agent shall have received a pro-forma
Compliance Certificate in form and substance acceptable to the Lenders and
demonstrating compliance with the terms of this Agreement and the Loan
Papers for one full year after the date of such proposed increase; and
(n) The Administrative Agent shall have received financial projections
in form and substance acceptable to the Lenders and demonstrating
compliance with the financial covenants set forth in Section 8.01 hereof
throughout the term of this Agreement; and
(o) The Commitment shall (i) never exceed the sum of the Commitment
plus the Unavailable Commitment, as each is reduced in accordance with
Section 2.11 hereof, this Section 2.18 and the other terms of this
Agreement, and (ii) never increase except to the extent, and not to exceed
such amount, that the Unavailable Commitment is in excess of zero; and
(p) The Unavailable Commitment shall be reduced in accordance with
this Section 2.18 dollar for dollar for each increase in the Commitment;
and
(q) The Administrative Agent on behalf of each Lender shall have
received all amendments to security agreements, deeds of trust and
mortgages as the Administrative Agent shall deem necessary to maintain its
valid and perfected Lien.
No Lender shall be obligated to increase the dollar amount of its share of
the Commitment without its written consent in its sole discretion. In connection
with any increase to the Commitment in accordance with the terms of this Section
2.18, each existing Lender (regardless of whether such Lender is participating
in such increase) agrees to execute any and all agreements requested by the
Administrative Agent to effectuate the intent of this Section 2.18.
Notwithstanding anything contained herein to the contrary, the limitations
placed upon assignments set forth in Section 11.04 hereof shall not apply to
proposed increases pursuant to this Section.
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ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit. Letters of Credit issued under the
Original Credit Agreement and described on Schedule 3.01 hereto shall be
-------------
deemed, for the purposes of this Agreement, to be issued hereunder, and each
such Letter of Credit shall be treated accordingly. The Borrower shall give the
Administrative Agent not less than five Business Days prior written notice of a
request for the issuance of a Letter of Credit, and the Administrative Agent
shall promptly notify each Lender of such request. Upon receipt of the
Borrower's properly completed and duly executed Applications, and subject to the
terms of such Applications and to the terms of this Agreement ( this Agreement
governing all conflicting provisions), the Administrative Agent agrees to issue
Letters of Credit on behalf of the Borrower in an aggregate face amount not in
excess of the Letter of Credit Commitment, each denominated in Dollars and each
for sight drawings only. No Letter of Credit shall have a maturity extending
beyond the earliest of (i) the fifth Business Day prior to the First Maturity
Date, or (ii) one year from the date of its issuance, or (iii) such earlier date
as may be required to enable the Borrower to satisfy its repayment obligations
under Section 2.06 hereof (including, without limitation, such repayment
obligations resulting from a decrease in the Commitment required by Section 2.11
hereof). Subject to such maturity limitations and so long as no Default or Event
of Default has occurred and is continuing or would result from the renewal of a
Letter of Credit, the Letters of Credit may be renewed by the Administrative
Agent in its discretion. The Lenders shall participate ratably in all rights and
obligations of the Administrative Agent under the Letters of Credit and in any
unreimbursed draws under any Letter of Credit in their Revolver Specified
Percentages. The amount of the Letters of Credit issued and outstanding and the
unpaid reimbursement obligations of the Borrower for such Letters of Credit
shall reduce the amount of Commitment available, so that at no time shall the
sum of (i) all outstanding Revolver Advances in the aggregate, plus (ii) the
aggregate face amount of all outstanding Letters of Credit, plus (iii) (without
duplication) all outstanding reimbursement obligations related to Letters of
Credit, exceed $235,000,000 (as may be increased by Section 2.18 hereof, and as
may be reduced by Section 2.11 hereof), and at no time shall the sum of all
Revolver Advances made by any Lender (except the Canada Lender) plus any such
Lender's ratable share of amounts available to be drawn under the Letters of
Credit and the unpaid reimbursement obligations of the Borrower in respect of
such Letters of Credit exceed such Lender's Revolver Specified Percentage of the
Commitment, provided that, with respect to the Canada Lender, at no time shall
the sum of all Revolver Advances made by the Canada Lender plus its ratable
share of amounts available to be drawn under the Letters of Credit and the
unpaid reimbursement obligations of the Borrower in respect of such Letters of
Credit exceed an amount equal to the difference between its Revolver Specified
Percentage of the Commitment, minus the Canada Indebtedness Amount.
3.02. Letters of Credit Fee. In consideration for the issuance of each
Letter of Credit, the Borrower shall pay to (a) the Administrative Agent for its
own account, an application and processing fee in the amount of (i) $350.00 on
each Letter of Credit, due and payable on the date of issuance of each Letter of
Credit and (ii) the product of 1/8 of 1 percent multiplied by the face amount of
each such Letter of Credit, plus and (b) the Administrative Agent for the
account of the Administrative Agent and the Lenders in accordance with their
Revolver Specified Percentages, a per annum fee for each Letter of Credit equal
to the product of the Applicable Margin for LIBOR Advances on the date of
issuance multiplied by the
48
face amount of each such Letter of Credit. Each fee for each Letter of Credit
under subsections (a)(i) and (b) above shall be due and payable to the
Administrative Agent quarterly as it accrues on each Quarterly Date during the
term of the Letter of Credit and on the expiration or renewal and/or extension
of each such Letter of Credit, beginning with the first such Quarterly Date
after the issuance of each Letter of Credit and continuing through the expiry
date of each such Letter of Credit, or the renewal and/or extension of each such
Letter of Credit.
3.03. Reimbursement Obligations.
(a) The Borrower hereby absolutely, unconditionally and irrevocably agrees
to reimburse Administrative Agent immediately upon demand by Administrative
Agent, and in immediately available funds, for any payment or disbursement made
by Administrative Agent under any Letter of Credit. The obligations of the
Borrower under this Agreement, any Letter of Credit and any Application to
reimburse the Administrative Agent for a drawing under a Letter of Credit shall
be unconditional and irrevocable, and shall be paid strictly in accordance with
the term of this Agreement and each Application under all circumstances,
including the following:
(i) any lack of validity of enforceability of this Agreement or any
Application;
(ii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of the Borrower in respect of
any Letter of Credit or any other amendment or waiver of or any consent to
departure from all or any of the provisions of this Agreement or any
Application;
(iii) the existence of any claim, set-off, defense or other right that the
Borrower or any Subsidiary of the Borrower may have at any time against any
beneficiary or any transferee of any Letter of Credit (or any Person for
whom any such beneficiary or any such transferee may be acting), the
Administrative Agent or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby, any Application, any
underlying transaction or any unrelated transaction;
(iv) any draft, demand, certificate or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any Letter of Credit;
(v) any payment by the Administrative Agent under any Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of any Letter of Credit; or any payment made by the
Administrative Agent under any Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative of or successor
to any beneficiary or any transferee of any Letter of Credit, including any
proceeding arising in connection with any Debtor Relief Laws;
49
(vi) any exchange, release or non-perfection of any collateral, or any
release or amendment or waiver of or consent to departure from any other
guaranty, for all or any of the obligations of the Borrower in respect of
any Letter of Credit; or
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or a guarantor.
Payment shall be made by the Borrower with interest on the amount so paid or
disbursed by Administrative Agent from and including the date payment is made
under any Letter of Credit to and including the date of payment, at the lesser
of (i) the Highest Lawful Rate, and (ii) the sum of the Base Rate in effect from
time to time plus two percent (2%) per annum; provided, however, that if the
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Borrower would be permitted under the terms of Section 2.01, Section 2.02 and
Section 4.02 hereof to borrow Advances in amounts at least equal to their
reimbursement obligation for a drawing under any Letter of Credit, a Base
Advance by each Lender, in an amount equal to such Lender's Revolver Specified
Percentage, shall automatically be deemed made on the date of any such payment
or disbursement made by Administrative Agent in the amount of such obligation
and subject to the terms of this Agreement. The Administrative Agent shall
notify each Lender that has a Revolver Specified Percentage in excess of zero of
any such Base Advance deemed made.
(b) The Borrower hereby also agrees to pay to Administrative Agent
immediately upon demand by Administrative Agent and in immediately available
funds, as security for their reimbursement obligations in respect of the Letters
of Credit under Section 3.03(a) hereof and any other amounts payable hereunder
and under the Notes, an amount equal to the aggregate amount available to be
drawn under Letters of Credit then outstanding, irrespective of whether the
Letters of Credit have been drawn upon, upon an Event of Default. Any such
payments shall be deposited in a separate account designated "Pinnacle Special
Account" or such other designation as Administrative Agent shall elect. All such
amounts deposited with Administrative Agent shall be and shall remain funds of
the Borrower on deposit with Administrative Agent and may be invested by
Administrative Agent as Administrative Agent shall determine. Such amounts may
not be used by Administrative Agent to pay the drawings under the Letters of
Credit; however, such amounts may be used by Administrative Agent as
reimbursement for Letter of Credit drawings which Administrative Agent has paid.
If any amounts in the Pinnacle Special Account shall have been deposited upon
the occurrence of an Event of Default only and such Event of Default shall have
been subsequently cured or waived and no other Event of Default exists, the
Borrower shall be relieved of its obligations under this Section 3.03(b) until
an Event of Default once again occurs. During the existence of an Event of
Default but after the expiration of any Letter of Credit that was not drawn
upon, the Borrower may direct the Administrative Agent to use any cash
collateral for any such expired Letter of Credit, if any, to reduce the amount
of the Obligations. Any amounts remaining in the Pinnacle Special Account, after
the date of the expiration of all Letters of Credit and after all Obligations
have been paid in full, shall be repaid to the Borrower promptly after such
expiration and such payment in full.
50
(c) The obligations of the Borrower under this Section 3.03 will continue
until all Letters of Credit have expired and all reimbursement obligations with
respect thereto have been paid in full by the Borrower and until all other
Obligations shall have been paid in full.
(d) The Borrower shall be obligated to reimburse Administrative Agent upon
demand for all amounts paid under the Letters of Credit as set forth in Section
3.03(a) hereof; provided, however, if the Borrower for any reason fails to
reimburse Administrative Agent in full upon demand, whether by borrowing
Advances to pay such reimbursement obligations or otherwise, the Lenders shall
reimburse Administrative Agent in accordance with each Lender's Revolver
Specified Percentage for amounts due under this Article III and unpaid from the
Borrower as set forth in Section 3.04 hereof; provided, however, that no such
reimbursement made by the Lenders shall discharge the Borrower's obligations to
reimburse Administrative Agent.
(e) The Borrower shall indemnify and hold Administrative Agent and each
Lender, its officers, directors, representatives and employees harmless from
loss for any claim, demand or liability which may be asserted against
Administrative Agent or such indemnified party in connection with actions taken
under the Letters of Credit or in connection therewith (including losses
resulting from the negligence of Administrative Agent or such indemnified
party), and shall pay Administrative Agent for reasonable fees of attorneys (who
may be employees of Administrative Agent) and legal costs paid or incurred by
Administrative Agent in connection with any matter related to the Letters of
Credit, except for losses and liabilities incurred as a direct result of the
gross negligence or wilful misconduct of Administrative Agent or such
indemnified party, as finally determined by a court of competent jurisdiction.
If the Borrower for any reason fails to indemnify or pay Administrative Agent or
such indemnified party as set forth herein in full, the Lenders shall indemnify
and pay Administrative Agent upon demand, in accordance with each Lender's
Revolver Specified Percentage of such amounts due and unpaid from the Borrower.
The provisions of this Section 3.03(e) shall survive the termination of this
Agreement.
3.04. Lenders' Obligations. Each Lender agrees, unconditionally and
irrevocably to reimburse Administrative Agent (to the extent Administrative
Agent is not otherwise reimbursed by the Borrower in accordance with Section
3.03(a) hereof) on demand for such Lender's Revolver Specified Percentage of
each draw paid by Administrative Agent under any Letter of Credit. All amounts
payable by any Lender under this subsection shall include interest thereon at
the Federal Funds Rate, from the date of the applicable draw to the date of
reimbursement by such Lender. No Lender shall be liable for the performance or
nonperformance of the obligations of any other Lender under this Section. The
obligations of the Lenders under this Section with respect to Letters of Credit
issued in accordance with the terms of this Agreement shall continue after the
First Maturity Date and shall survive the termination of any Loan Papers, but
only to the extent that any such Lender has not reimbursed the Administrative
Agent prior to such date in accordance with the terms hereof.
51
3.05. Administrative Agent's Obligations.
(a) Administrative Agent makes no representation or warranty, and assumes
no responsibility with respect to the validity, legality, sufficiency or
enforceability of any Application or any document relative thereto or to the
collectibility thereunder. Administrative Agent assumes no responsibility for
the financial condition of the Borrower and its Subsidiaries or for the
performance of any obligation of the Borrower. Administrative Agent may use its
discretion with respect to exercising or refraining from exercising any rights,
or taking or refraining from taking any action which may be vested in it or
which it may be entitled to take or assert with respect to any Letter of Credit
or any Application.
(b) Except as set forth in subsection (c) below, Administrative Agent
shall be under no liability to any Lender, with respect to anything the
Administrative Agent may do or refrain from doing in the exercise of its
judgment, the sole liability and responsibility of Administrative Agent being to
handle each Lender's share on as favorable a basis as Administrative Agent
handles its own share and to promptly remit to each Lender its share of any sums
received by Administrative Agent under any Application. Administrative Agent
shall have no duties or responsibilities except those expressly set forth herein
and those duties and liabilities shall be subject to the limitations and
qualifications set forth herein.
(c) Neither Administrative Agent nor any of its directors, officers, or
employees shall be liable for any action taken or omitted (whether or not such
action taken or omitted is expressly set forth herein) under or in connection
herewith or any other instrument or document in connection herewith, except for
gross negligence or willful misconduct, and no Lender waives its right to
institute legal action against Administrative Agent for wrongful payment of any
Letter of Credit due to Administrative Agent's gross negligence or willful
misconduct. Administrative Agent shall incur no liability to any Lender, the
Borrower or any Affiliate of the Borrower or Lender in acting upon any notice,
document, order, consent, certificate, warrant or other instrument reasonably
believed by Administrative Agent to be genuine or authentic and to be signed by
the proper party.
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to Closing, Effectiveness of this Agreement and
the Refunding Advance. The effectiveness of this Agreement and the obligation of
the Lenders to make the initial refunding Advance to refinance the existing
indebtedness, or issue the first Letter of Credit, is subject to receipt by the
Administrative Agent of each of the following, in form and substance
satisfactory to the Administrative Agent (and, in the case of subparagraphs (b),
(c) and (i) below, each Lender), with a copy (except for the Notes) for each
Lender:
(a) A loan certificate of the Borrower, the Parent and each Subsidiary of
the Borrower certifying as to the accuracy of their representations and
warranties in the Loan Papers, certifying that no Default has occurred, and
including a certificate of incumbency with respect to each Authorized Officer,
and including (i) a copy of the Articles of Incorporation of the Borrower, the
52
Parent and each Subsidiary of the Borrower, certified to be true, complete and
correct by the secretary of state of its state of incorporation, (ii) a copy of
the By-Laws of the Borrower, the Parent and each Subsidiary of the Borrower, as
in effect on the Closing Date, (iii) a copy of the resolutions of the Borrower,
the Parent and each Subsidiary of the Borrower authorizing them to execute,
deliver and perform this Agreement, the Notes and the other Loan Papers to which
each of them is a party, and (iv) a copy of a certificate of good standing and a
certificate of existence for the Borrower's, the Parent's, and each of the
Borrower's Subsidiaries' state of incorporation and each state in which they are
conducting material business;
(b) duly executed Notes, payable to the order of each Lender in an amount
for each Lender (i) equal to its Revolver Specified Percentage of $235,000,000,
(ii) equal to its Term Loan A Specified Percentage of $125,000,000 and (iii)
equal to its Term Loan B Specified Percentage of $110,000,000;
(c) duly executed and completed confirmation agreement confirming
obligations under (i) pledge agreements by the Parent and the Borrower; (ii) the
Guaranty of the Obligations executed by the Parent and the Subsidiaries of the
Borrower; (iii) Security Agreement by the Borrower, the Parent and the
Subsidiaries of the Borrower granting the Lenders a lien and security interest
in all assets owned by the Borrower, the Parent and the Subsidiaries of the
Borrower; and (iv) all other Loan Papers, including without limitation, all
mortgages, deeds of trust, and deeds to secure debt duly filed in all required
locations and each item required to be delivered on Schedule 2.16 hereto, except
-------------
those Loan Papers specifically agreed to in Section 6.15 hereof;
(d) copies of all financing statements filed against the Borrower, the
Parent and each Subsidiary of the Borrower, as debtor;
(e) opinions of counsel to the Borrower, the Parent and each Subsidiary of
the Borrower addressed to the Lenders and in form and substance satisfactory to
the Lenders, dated the Closing Date, including, without limitation, an opinion
of counsel to the Borrower that this Agreement does not violate or conflict with
any term or condition of the Indenture of any of the other Parent Senior Notes
Documentation;
(f) copies of insurance binders or certificates covering the assets of the
Borrower, the Parent and the Subsidiaries of the Borrower, and meeting the
requirements of Section 6.05 hereof;
(g) payment of all fees due to the Administrative Agent in accordance with
the terms of the Fee Letter to be paid on the Closing Date and reimbursement for
Administrative Agent of its reasonable fees and expenses and for Special
Counsel's reasonable fees and expenses rendered through the date hereof and
receipt by each Lender of its upfront fees;
(h) evidence that all corporate proceedings of the Borrower, the Parent
and the Subsidiaries of the Borrower taken in connection with the transactions
contemplated by this Agreement and the other Loan Papers shall be reasonably
satisfactory in form and substance to the Lenders and Special Counsel; and the
Lenders shall have received copies of all documents or
53
other evidence which the Administrative Agent, Special Counsel or any Lender may
reasonably request in connection with such transactions;
(i) copies of the following audited financial statements for the Borrower
(and as applicable, the Parent), as of and for the period ended December 31,
1998; (i) balance sheets of the Borrower, the Parent and the Subsidiaries of the
Borrower as of the end of such period, and (ii) statements of income and changes
in cash for such period; all in reasonable detail and certified by an Authorized
Officer to the best of his knowledge to present fairly in all material respects
the consolidated financial position of the Borrower and the results of
operations for the period then ended and, except as noted therein, to be in
accordance with GAAP (other than footnotes thereto);
(j) a duly completed Compliance Certificate evidencing no Default or Event
of Default as of the Closing Date;
(k) the Parent, the Borrower and each Subsidiary of the Borrower shall
have provided the Administrative Agent with all information, documentation,
agreements, etc. in order for the Administrative Agent to have a Lien in all
cash of the Parent, the Borrower and each Subsidiary of the Borrower from time
to time on hand in excess of $10,000,000; and
(l) in form and substance satisfactory to the Lenders and Special Counsel,
such other documents, instruments and certificates as the Administrative Agent
or any Lender may reasonably require in connection with the transactions
contemplated hereby, including without limitation the status, organization or
authority of the Borrower, the Parent and the Subsidiaries of the Borrower, and
the enforceability of and security for the Obligations.
4.02. Conditions Precedent to All Advances and Letters of Credit. The
obligation of each Lender to make each Advance hereunder and the obligation of
the Administrative Agent to issue any Letter of Credit shall be subject to the
further conditions precedent that on the date of such Advance or such issuance
of such Letter of Credit:
(a) All of the representations and warranties of the Borrower under this
Agreement 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 the Advance
or the issuance of the Letter of Credit, except those representations and
warranties that specifically speak as of a particular date;
(b) The incumbency of the Authorized Officers shall be as stated in the
certificate of incumbency delivered in the Borrower's loan certificate pursuant
to Section 4.01(a) or as subsequently modified and reflected in a certificate of
incumbency delivered to the Administrative Agent. The Lenders may, without
waiving this condition, consider it fulfilled and a representation by the
Borrower made to such effect if no written notice to the contrary, dated on or
before the date of such Advance or the issuance of such Letter of Credit, is
received by the Administrative Agent from the Borrower prior to the making of
such Advance or such Letter of Credit;
54
(c) There shall not exist a Default hereunder or an Event of Default
hereunder and none shall exist as a result of making any such Advance or such
Letter of Credit, and the Administrative Agent shall have received written or
telephonic certification thereof by an Authorized Officer (which certification,
if telephonic, shall be followed promptly by written certification);
(d) There shall have occurred no Material Adverse Change since December 31,
1998;
(e) In the case of each Letter of Credit, Borrower shall have delivered to
the Administrative Agent a duly executed and complete Application acceptable to
Administrative Agent;
(f) In the case of any Advance under the Revolver Loan, the aggregate
outstanding Revolver Advances, after giving effect to any such proposed Revolver
Advance, shall not exceed the Commitment; and
(g) In the case of each and every Advance under the Loan, the Borrower, by
making its borrowing request hereunder, or requesting the issuance of any Letter
of Credit, will provide a certificate to the Administrative Agent containing (i)
a representation and warranty to the Administrative Agent and each Lender that
the proceeds of such Advance shall be used in accordance with the terms of
Section 2.15 hereof, and (ii) a representation and calculation that with respect
to each Revolver Advance that is not a Qualified Facility Revolver Advance, such
Advance will constitute Acquisition Debt in accordance with the terms of the
Indenture and that such acquisition is a nonleveraging event, in accordance
with the terms of the Indenture, the Parent Senior Notes Documentation (with
supporting calculations in reasonable detail acceptable to the Administrative
Agent with respect thereto).
4.03. Conditions Precedent to Advances for Permitted Acquisitions. The
obligation of each Lender to make each Advance (including the initial Advance)
where any proceeds of such Advance will be used for a Permitted Acquisition,
shall be subject to the further conditions precedent that the Borrower has
complied with all terms and provisions of Sections 6.15 and 6.16 hereof.1
55
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties. The Borrower hereby represents and
warrants to each Lender as follows:
(a) The respective jurisdictions of incorporation and percentage ownership
of the Subsidiaries of the Parent by the Parent and the Borrower on the Closing
Date and listed on Schedule 5.01(a) hereto are true and correct. Each of the
----------------
Parent, the Borrower and its Subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of its state of
organization. Each of the Parent, the Borrower and its Subsidiaries has the
corporate power and authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted. Each of the Parent, the
Borrower and its 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 business requires such qualification or authorization, except
where the failure to so qualify would not cause a Material Adverse Change.
(b) The Borrower has corporate power and has taken all necessary corporate
action to authorize it to borrow hereunder. Each of the Parent, the Borrower
and its Subsidiaries has corporate power and has taken all necessary corporate
action to execute, deliver and perform the Loan Papers to which it is party in
accordance with the terms thereof, and to consummate the transactions
contemplated thereby. Each Loan Paper has been duly executed and delivered by
the Parent, the Borrower or such Subsidiary executing it. Each of the Loan
Papers to which the Parent, the Borrower, and its Subsidiaries are party is a
legal, valid and binding respective obligation of the Parent, the Borrower or
such Subsidiary, as applicable, enforceable in accordance with its terms,
subject, to enforcement of remedies, to the following qualifications: (i)
equitable principles generally, and (ii) bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Parent, the Borrower or any Subsidiary of the
Borrower).
(c) The execution, delivery and performance by the Parent, the Borrower and
its Subsidiaries of the other Loan Papers to which they are respectively a
party, and the consummation of the transactions contemplated thereby, do not and
will not (i) require any consent or approval not already obtained, (ii) violate
any Applicable Law, (iii) conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws of the Parent, the
Borrower or any Subsidiary of the Borrower, or under any material License,
indenture, agreement or other instrument, to which the Parent, the Borrower or
any Subsidiary of the Borrower is a party or beneficiary of, or by which they or
their respective Properties may be bound, or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Parent, the Borrower or any Subsidiary of the
Borrower, except Permitted Liens.
(d) The Parent, the Borrower and its Subsidiaries are primarily engaged in
the operation of leasing and subleasing towers and tower sites, and pursuing
activities related thereto.
56
(e) All material Licenses have been duly authorized and obtained, and are
in full force and effect. The Parent, the Borrower and its Subsidiaries are and
will continue to be in compliance in all material respects with all provisions
thereof. On the Closing Date, no material License is the subject of any pending
or, to the best of the Borrower's knowledge, threatened challenge or revocation.
After the Closing Date, no material License is the subject of any pending or, to
the best of the Borrower's knowledge, threatened challenge or revocation, which
such event could cause a Material Adverse Change. The Parent, the Borrower and
its Subsidiaries are not required to obtain any material License that has not
already been obtained from, or effect any material filing or registration that
has not already been effected with, the FCC, the FAA or any other federal, state
or local regulatory authority in connection with the execution and delivery of
this Agreement or any other Loan Paper, or the performance thereof (other than
any enforcement of remedies by the Administrative Agent on behalf of the
Lenders), in accordance with their respective terms, including any borrowings
hereunder.
(f) The Parent, the Borrower and its Subsidiaries are in compliance in all
material respects with all Applicable Laws. The Parent, the Borrower and its
Subsidiaries have duly and timely filed all reports, statements and filings that
are required to be filed by any of them under the Communications Act, and are in
all material respects in compliance therewith, including without limitation the
rules and regulations of the FCC and FAA. Except as set forth on Schedule
--------
5.01(f) hereto, as of the Closing Date, the Borrower is not aware of any event
-------
or circumstance constituting noncompliance (or any Person alleging
noncompliance) with any rule or regulation of the FAA. After the Closing Date,
the Borrower is not aware of any event or circumstance constituting
noncompliance (or any Person alleging noncompliance) with any rule or regulation
of the FAA, which such event or circumstance could cause a Material Adverse
Change.
(g) The Parent, the Borrower and its Subsidiaries have good and
indefeasible title to, or a valid leasehold interest in, all of their material
assets. None of their assets are subject to any Liens, except Permitted Liens.
As of the Closing Date, no financing statement or other Lien filing authorized
by the Parent, the Borrower or any Subsidiary of the Borrower (except relating
to Permitted Liens) is on file in any state or jurisdiction that names the
Parent, the Borrower or any of its Subsidiaries as debtor or covers (or purports
to cover) any assets of the Parent, the Borrower or any of its Subsidiaries.
After the Closing Date, no financing statement or other Lien filing authorized
by the Parent, the Borrower or any Subsidiary of the Borrower (except relating
to Permitted Liens) is on file in any state or jurisdiction that names the
Parent, the Borrower or any of its Subsidiaries as debtor or covers (or purports
to cover) any assets of the Parent, the Borrower or any of its Subsidiaries,
which such financing statement or other Lien filing could cause a Material
Adverse Change. The Parent, the Borrower and its Subsidiaries have not signed
any such financing statement or filing, nor any security agreement authorizing
any Person to file any such financing statement or filing.
(h) On the Closing Date, except as reflected on Schedule 5.01(h) hereto,
----------------
there is no action, suit, proceeding or any other Litigation pending against,
or, to the best of the Borrower's knowledge, threatened against the Parent, the
Borrower or any of its Subsidiaries, or in any other manner relating directly
and materially adversely to the Parent, the Borrower, any of its Subsidiaries,
or any of their material Properties, in any court or before any arbitrator of
any kind
57
or before or by any governmental body. On each date after the Closing Date on
which this representation is deemed to be made, there is no action, suit,
proceeding or any other Litigation pending against, or, to the best of the
Borrower's knowledge, threatened against the Parent, the Borrower or any of its
Subsidiaries, or in any other manner relating to the Parent, the Borrower, any
of its Subsidiaries, or any of their Properties, in any court or before any
arbitrator of any kind or before or by any governmental body, which could
reasonably be expected to cause a Material Adverse Change.
(i) All federal, state and other Tax returns of the Parent, the Borrower
and its Subsidiaries required by law to be filed have been duly filed and all
federal, state and other Taxes, assessments and other governmental charges or
levies upon the Parent, the Borrower, its Subsidiaries or any of their
Properties, income, profits and assets, which are due and payable, have been
paid, except those that are diligently contested in good faith by the Borrower
and for which a reserve has been established in accordance with GAAP, and no
Lien (other than a Permitted Lien) has attached and no foreclosure, distraint,
sale or similar proceedings have been commenced.
(j) The Borrower has furnished or caused to be furnished to the Lenders
copies of its audited financial statements at December 31, 1998, which are
prepared in good faith and complete in all material respects and present fairly
in all material respects and in accordance with GAAP (except, with respect to
the financial statements delivered prior to the Closing Date, as noted therein),
the financial position of the Parent, the Borrower and its Subsidiaries as at
such dates and the results of operations for the periods then ended. The
Parent, the Borrower and its Subsidiaries have no material liabilities,
contingent or otherwise, nor material losses, except as disclosed in writing to
the Lenders prior to the Closing Date or as disclosed on any subsequent
financial statements. On the Closing Date after giving effect to the Advances
made on such date, each of the Parent, the Borrower and its Subsidiaries is
Solvent.
(k) Since the date of the most recent financial statements delivered to
the Lenders, no event or circumstances have occurred or arisen that could
constitute a Material Adverse Change.
(l) None of the Borrower or its Controlled Group maintains or contributes
to any Plan other than those disclosed to the Administrative Agent in writing.
Each such Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code, and any other applicable Federal or state law,
rule or regulation. With respect to each Plan of the Borrower and each member
of its Controlled Group (other than a Multiemployer Plan), all reports required
under ERISA or any other Applicable Law to be filed with any governmental
authority, the failure of which to file could reasonably result in liability of
the Borrower or any member of its Controlled Group in excess of $100,000, have
been duly filed. All such reports are true and correct in all material respects
as of the date given. No such Plan of the Borrower or any member of its
Controlled Group has any accumulated funding deficiency (as defined in Section
412(a) of the Code) (without regard to any waiver granted under Section 412 of
the Code), nor has any funding waiver from the Internal Revenue Service been
received or requested. None of the Borrower or any member of its Controlled
Group has failed to make any contribution or pay any amount due or owing as
required by Section 412 of the Code or Section 302 of ERISA or the terms of any
such Plan prior to the due date under Section 412 of the Code
58
and Section 302 of ERISA. There has been no ERISA Event or any event requiring
disclosure under Section 4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA
with respect to any Plan or trust of the Borrower or any member of its
Controlled Group since the effective date of ERISA. The value of the assets of
each Plan (other than a Multiemployer Plan) of the Borrower and each member of
its Controlled Group equaled or exceeded the present value of the benefit
liabilities, as defined in Title IV of ERISA, of each such Plan as of the most
recent valuation date using Plan actuarial assumptions at such date. There are
no pending or, to the best of the Borrower's knowledge, threatened claims,
lawsuits or actions (other than routine claims for benefits in the ordinary
course) asserted or instituted against, and neither the Borrower nor any member
of its Controlled Group has knowledge of any threatened Litigation or claims
against, (i) the assets of any Plan or trust or against any fiduciary of a Plan
with respect to the operation of such Plan, or (ii) the assets of any employee
welfare benefit plan within the meaning of Section 3(1) or ERISA, or against any
fiduciary thereof with respect to the operation of any such plan. None of the
Borrower or any member of its Controlled Group has engaged in any prohibited
transactions, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, in connection with any Plan. None of the Borrower or any member of its
Controlled Group, nor has incurred or reasonably expects to incur (A) any
liability under Title IV of ERISA (other than premiums due under Section 4007 of
ERISA to the PBGC), (B) any withdrawal liability (and no event has occurred
which with the giving of notice under Section 4219 of ERISA would result in such
liability) under Section 4201 of ERISA as a result of a complete or partial
withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a
Multiemployer Plan, or (C) any liability under Section 4062 of ERISA to the PBGC
or to a trustee appointed under Section 4042 of ERISA. None of the Borrower, any
member of its Controlled Group, or any organization to which the Borrower or any
member of its Controlled Group is a successor or parent corporation within the
meaning of ERISA Section 4069(b), has engaged in a transaction within the
meaning of ERISA Section 4069. None of the Borrower or any member of its
Controlled Group maintains or has established any welfare benefit plan within
the meaning of Section 3(1) of ERISA which provides for continuing benefits or
coverage for any participant or any beneficiary of any participant after such
participant's termination of employment except as may be required by the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") and
the regulations thereunder, and at the expense of the participant or the
beneficiary of the participant, or retiree medical liabilities. Each of the
Borrower and its Controlled Group which maintains a welfare benefit plan within
the meaning of Section 3(1) of ERISA has complied in all material respects with
any applicable notice and continuation requirements of COBRA and the regulations
thereunder.
(m) The Borrower is not engaged principally or as one of its important
activities in the business of extending credit for the purpose of purchasing or
carrying any margin stock within the meaning of Regulations T, U and X of the
Board of Governors of the Federal Reserve System, and no part of the proceeds of
the Advances will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock. No
assets of the Parent, the Borrower and its Subsidiaries are margin stock, and
none of the Pledged Stock is margin stock. None of the Parent, the Borrower and
its Subsidiaries, nor any agent acting on their behalf, have taken or will
knowingly take any action which might cause this Agreement or any Loan Papers to
violate any regulation of the Board of Governors of the
59
Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as in effect now or as the same may hereafter be in effect.
(n) As of the Closing Date, the Parent, the Borrower and its Subsidiaries
are in compliance in all material respects with all of the provisions of their
articles of incorporation and by-laws, and no event has occurred or failed to
occur, which has not been remedied or waived, the occurrence or non-occurrence
of which constitutes, or which with the passage of time or giving of notice or
both would constitute, (i) an Event of Default or (ii) a default by the Parent,
the Borrower or any of its Subsidiaries under any material indenture, agreement
or other instrument, or any judgment, decree or order to which the Parent, the
Borrower or any of its Subsidiaries is a party or by which they or any of their
material Properties is bound. After the Closing Date, the Parent, the Borrower
and its Subsidiaries are in compliance in all material respects with all of the
provisions of their articles of incorporation and by-laws, and no event has
occurred or failed to occur, which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, or which with the passage of
time or giving of notice or both would constitute, (i) an Event of Default or
(ii) a default by the Parent, the Borrower or any of its Subsidiaries under any
material indenture, agreement or other instrument, or any judgment, decree or
order to which the Parent, the Borrower or any of its Subsidiaries is a party or
by which they or any of their material Properties is bound, that could
reasonably be expected to cause a Material Adverse Change.
(o) The Borrower is not required to register under the provisions of the
Investment Company Act of 1940, as amended. 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 of authority pursuant to any provisions
of such act.
(p) On the Closing Date, none of the Borrower nor any Subsidiary of the
Borrower has any actual knowledge or reason to believe that any substance deemed
hazardous by any applicable Environmental Law, has been installed on any real
property now owned by the Parent, the Borrower or any of its Subsidiaries,
except (i) for hazardous substances the presence of which is not in violation of
law and (ii) as disclosed to the Lenders. After the Closing Date, none of the
Parent, the Borrower nor any Subsidiary of the Borrower has any actual knowledge
or reason to believe that any substance deemed hazardous by any applicable
Environmental Law, has been installed in violation of law on any real property
now owned by the Parent, the Borrower or any of its Subsidiaries except as
disclosed to the Lenders and which would not, in the reasonable judgment of the
Borrower, cause a Material Adverse Change. As of the Closing Date, the Borrower
and its Subsidiaries are not in violation of or subject to any existing, pending
or, to the best of the Borrower's knowledge, threatened investigation or inquiry
60
by any governmental authority or to any material remedial obligations under any
applicable Environmental Laws, and this representation and warranty would
continue to be true and correct following disclosure to the applicable
governmental authorities of all relevant facts, conditions and circumstances, if
any, pertaining to any real property of the Parent, the Borrower and its
Subsidiaries. After the Closing Date, the Parent, the Borrower and its
Subsidiaries are not in violation of or subject to any existing, pending or, to
the best of the Borrower's knowledge, threatened investigation or inquiry by any
governmental authority or to any material remedial obligations under any
applicable Environmental Laws which could cause a Material Adverse Change, and
this representation and warranty would continue to be true and correct following
disclosure to the applicable governmental authorities of all relevant facts,
conditions and circumstances, if any, pertaining to any real property of the
Parent, the Borrower and its Subsidiaries. The Parent, the Borrower and its
Subsidiaries are not required to obtain any permits, Licenses or similar
authorizations to construct, occupy, operate or use any buildings, improvements,
fixtures, and equipment forming a part of any real property of the Parent, the
Borrower or any Subsidiary of the Borrower by reason of any applicable
Environmental Laws, except those that have been obtained. As of the Closing
Date, the Borrower and its Subsidiaries have no actual knowledge or reason to
believe, after reasonable investigation, that any hazardous substances or solid
wastes have been disposed of or otherwise released on or to the real property of
the Parent, the Borrower or any of its Subsidiaries in violation of any
applicable Environmental Law. After the Closing Date, the Parent, the Borrower
and its Subsidiaries have no actual knowledge or reason to believe, that any
hazardous substances or solid wastes have been disposed of or otherwise released
on or to the real property of the Parent, the Borrower or any of its
Subsidiaries, within the meaning of the applicable Environmental Laws, except as
disclosed to the Lenders and which such disposal or release would not cause a
Material Adverse Change.
(q) The agreements evidencing obligations with respect to Capital Leases
have been duly authorized, executed and delivered by the Parent, Borrower or its
Subsidiaries, as applicable, and (to the best of the Borrower's knowledge) the
other parties thereto. Except as disclosed to each Lender, there is no
Litigation, or, to the best of the Borrower's knowledge, threatened Litigation
or pending or threatened claim of breach or default, with respect to any such
Capital Lease obligations that could be expected to adversely affect any such
lease or contract. There is no Litigation, or, to the best of the Borrower's
knowledge, threatened Litigation or pending or threatened claim of breach or
default, with respect to any loan agreement or document evidencing any Debt for
Borrowed Money of the Parent, the Borrower, or their Subsidiaries that has not
been disclosed to Lenders. The Borrower has no knowledge of any default by any
tenant or tenants under any Tenant Leases which aggregate five percent or more
of the revenues of the Borrower and its Subsidiaries, except as disclosed to the
Lenders. The Borrower has no notice of or belief that any party to any material
Capital Lease is contemplating a breach, default or termination for any reason
of such contract or lease, except as disclosed to the Lenders. As of the
Closing Date, the Borrower has provided, or caused to be provided, to the
Administrative Agent complete and correct copies of or access to the Capital
Leases, all as amended, together with all exhibits and schedules thereto.
(r) All Pledged Stock has been duly authorized and validly issued, and is
fully paid and nonassessable. The Capital Stock described on Exhibit A to
Borrower Pledge Agreement constitutes all the issued and outstanding Capital
Stock of the Subsidiaries of the Borrower or the Subsidiaries of another
Subsidiary, except such shares that have been issued after the Closing Date,
pledged to the Administrative Agent to secure the Obligations and delivered to
the Administrative Agent together with stock powers executed in blank. All
Capital Stock of the Borrower is pledged to the Administrative Agent on behalf
of Lenders to secure the Obligations. No Person has conversion rights with
respect to, or any subscription rights, calls, commitments or claims of any
character for, or any repurchase or redemption options relating to, the Pledged
61
Stock, other than those that have waived. The Pledged Stock, when issued or
sold, was either (i) registered or qualified under applicable federal or state
securities laws, or (ii) exempt therefrom.
(s) No broker's, finder's or other fee or commission will be payable by
the Borrower (other than to the Lenders hereunder) with respect to the making of
the Commitment or the Advances hereunder. The Borrower agrees to indemnify and
hold harmless the Administrative Agent and each Lender from and against any
claims, demand, liability, proceedings, costs or expenses asserted with respect
to or arising in connection with any such fees or commissions.
(t) No event has occurred which permits (or with the passage of time would
permit) the revocation or termination of any material License, or which could
result in the imposition of any restriction thereon of such a nature that could
reasonably be expected to constitute a Material Adverse Change.
(u) The Parent, the Borrower and its Subsidiaries have obtained all
material patents, trademarks, service-marks, trade names, copyrights, Licenses
and other rights, free from burdensome restrictions, that are necessary for the
operation of their business as presently conducted and as proposed to be
conducted. Nothing has come to the attention of the Borrower or any of its
Subsidiaries to the effect that (i) any process, method, part or other material
presently contemplated to be employed by the Parent, Borrower or any Subsidiary
of the Borrower may infringe any patent, trademark, service-xxxx, trade name,
copyright, License or other right owned by any other Person, or (ii) there is
pending or overtly threatened any claim or Litigation against or affecting the
Borrower or any Subsidiary of the Borrower contesting its right to sell or use
any such process, method, part or other material, which could reasonably be
expected to cause a Material Adverse Change.
(v) Neither this Agreement nor any other document, certificate or
statement which has been furnished to any Lender by or on behalf of the Parent,
the Borrower or any Subsidiary of the Borrower in connection herewith contained
any untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statement contained herein and therein not
misleading at the time it was furnished. On the Closing Date, there is no fact
known to the Borrower and not known to the public generally that could
reasonably be expected to cause a Material Adverse Change, which has not been
set forth in this Agreement or in the documents, certificates and statements
furnished to the Lenders by or on behalf of the Borrower prior to the date
hereof in connection with the transaction contemplated hereby. On each date
after the Closing Date on which this representation is deemed to be made, there
is no fact known to the Borrower and not known to the public generally that
could reasonably be expected to cause a Material Adverse Change, which has not
been disclosed to the Lenders in writing.
(w) There exists no breach or default by any party under any Tenant Lease,
except (i) those disclosed to the Administrative Agent in writing, and (ii)
breaches of any Tenant Lease, or all breaches of Tenant Leases in the aggregate,
that could not cause a Material Adverse Change. All Tenant Leases in existence
on the Closing Date are listed on Schedule 5.01(w) hereto, together with the
----------------
lease rate for each such Tenant Lease, the date of termination of each such
Tenant Lease, and whether such Tenant Lease is a Oral Tenant Lease. No Tenant
Lease is a Oral Tenant Lease, except, if the Borrower is in compliance with
Section 6.15(c) below, the Borrower
62
may have Oral Tenant Leases that are disclosed to the Lenders in connection with
Section 7.07 below and accurately included in all calculations pursuant to
Sections 6.15(a) and (c) below.
(x) All Ground Leases are in full force and effect, and, as of the Closing
Date, there exists no breach or default by any party under any Ground Lease,
except those disclosed to the Administrative Agent in writing. All Ground
Leases in existence on the Closing Date are listed on Schedule 5.01(x) hereto,
----------------
together with the lease rate for each such Ground Lease, the date of termination
of each such Ground Lease and the Tower Cash Flow generated from the Tower on
each such Ground Lease, in each case, as of the Closing Date.
(y) Each piece of owned real property in existence on the Closing Date is
listed on Schedule 5.01(y) hereto, together with the Tower Cash Flow related to
----------------
such piece of real property. After the expiration of 90 days after the Closing
Date, all real property owned by the Borrower or any Subsidiary for more than 90
days is subject to a mortgage and/or deed of trust and otherwise complies with
all requirements set forth with respect to owned real property in Section 6.15
hereof.
(z) Either (i) Parent (A) qualifies as a real estate investment trust, as
defined in Section 856(a) of the Code, and satisfies the conditions and
limitations set forth in Sections 856(b) and 856(c) of the Code, (B) has not
engaged in any "prohibited transactions" as defined in Section 857(b)(6)(B)(iii)
and (C) of the Code and (C) for its current "tax year" (as defined in the Code)
is and for all prior tax years subsequent to its election to be a real estate
investment trust has been entitled to a dividends paid deduction under the
requirements of Section 857 of the Code. Borrower and each of the Subsidiaries
of Borrower is a Qualified REIT Subsidiary, or (ii) the Borrower has delivered
written notice to the Administrative Agent in accordance with the terms of
Section 7.04(e) hereof, that a REIT Conversion has occurred.
(aa) On each date after the Closing Date on which this representation is
deemed to be made, no event has occurred and no circumstance exists, which by
itself or aggregated together with all other such events or circumstances is
likely to (i) reduce Tower Cash Flow in the aggregate for all Towers by five
percent or more for a period in excess of three months, or (ii) otherwise cause
a Material Adverse Change.
(bb) None of the Parent, the Borrower or their respective Subsidiaries have
any Synthetic Leases.
(cc) Each piece of Collateral (except cash and cash equivalents) is subject
to a perfected first priority Lien securing the Obligations, subject to Liens
permitted to exist in accordance with the terms of Section 8.03 hereof. All
cash and cash equivalents of the Borrower, the Parent and the Subsidiaries of
the Parent and the Borrower in excess of $10,000,000 is subject to a Lien
securing the Obligations.
(dd) The Borrower has (a) undertaken a detailed review and assessment of
all areas within its business and operations that could be adversely affected by
the "Year 2000 Problem" (that is, the risk that computer applications used by
the Borrower may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to, on, and any date after
63
December 31, 1999), (b) developed a detailed plan and timeline for addressing
the Year 2000 Problem on a timely basis, and (c) to date, implemented that plan
in accordance with that timetable. The Borrower reasonably anticipates that all
computer applications that are material to its business and operations will on a
timely basis be able to perform properly date-sensitive functions for all dates
before, on and after January 1, 2000 (that is, be "Year 2000 Compliant").
5.02. Survival of Representations and Warranties. All representations
and warranties made under this Agreement and the other Loan Papers shall be
deemed to be made at and as of the Closing Date and at and as of the date of
each Advance and/or the issuance of each Letter of Credit, and each shall be
true and correct in all material respects when made. All such representations
and warranties shall survive, and not be waived by, the execution hereof by any
Lender, any investigation or inquiry by any Lender, or by the making of any
Advance under this Agreement.
ARTICLE VI. GENERAL COVENANTS
So long as any of the Obligations or Canada Obligations are outstanding and
unpaid or any portion of either of the Commitment or any Letter of Credit is
outstanding (whether or not the conditions to borrowing have been or can be
fulfilled):
6.01. Preservation of Existence and Similar Matters. The Borrower
shall, and shall cause each Subsidiary of the Borrower and the Parent to:
(a) preserve and maintain, or timely obtain and thereafter preserve and
maintain, its existence and material rights, franchises, authorizations,
consents, privileges and all other material Licenses from federal, state and
local governmental bodies and any Tribunal (regulatory or otherwise); and
(b) 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 do so would not cause a Material Adverse Change.
0.00.Xxxxxxxx; Compliance with Law and Material Agreements. The
Parent, the Borrower and its Subsidiaries shall (a) engage primarily in the
acquisition and operation of Towers, and leasing and subleasing Towers and Tower
sites, and activities related thereto, and (b) comply in all material respects
with the requirements of all Applicable Law and all material agreements to which
each is a party.
6.03.Maintenance of Properties. The Borrower shall, and shall cause
the Parent and each Subsidiary of the Borrower to, maintain or cause to be
maintained all its material Properties necessary to the conduct of its business
(whether owned or held under lease) in reasonably good repair, working order and
condition, taken as a whole, and from time to time make or cause to be made all
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
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6.04. Accounting Methods and Financial Records. The Borrower shall,
and shall cause the Parent and each Subsidiary of the Borrower to, maintain a
system of accounting established and administered in accordance with GAAP, keep
adequate records and books of account in which complete entries will be made and
all transactions reflected in accordance with GAAP, and keep accurate and
complete records of its respective assets. The Borrower and each of its
Subsidiaries shall maintain a fiscal year ending on December 31.
6.05. Insurance. The Borrower shall, and shall cause the Parent and
each Subsidiary of the Borrower to, maintain insurance from responsible
companies in such amounts and against such risks as shall be customary and usual
in the industry for companies of similar size and capability, but in no event
less than the amount and types insured as of the Closing Date, provided that,
the Borrower is permitted to self insure the replacement value of Towers having
in the aggregate at any one time insurable values not more than 5% of the
aggregate insurable values for all Towers. Each insurance policy shall provide
for at least 30 days' prior notice to the Administrative Agent of any proposed
termination or cancellation of such policy, whether on account of default or
otherwise and all property insurance shall name the Administrative Agent as loss
payee or additional insured, as appropriate.
6.06. Payment of Taxes and Claims. The Borrower shall, and shall cause
the Parent and each Subsidiary of the Borrower to, pay and discharge all Taxes,
assessments and governmental charges or levies imposed upon it or its income or
Properties prior to the date on which penalties attach thereto, and all lawful
material claims for labor, materials and supplies which, if unpaid, might become
a Lien upon any of their Properties, except those Taxes, assessments and charges
contested by the Borrower diligently in good faith, and for which adequate
reserves have been established in accordance with GAAP. The Borrower shall, and
shall cause the Parent and each Subsidiary of the Borrower to, timely file all
information returns required by federal, state or local Tax authorities.
6.07. Visits and Inspections. The Borrower shall, and shall cause each
Subsidiary of the Borrower and the Parent to, promptly permit representatives of
the Administrative Agent or any Lender from time to time to (a) visit and
inspect the Properties of the Parent, the Borrower and each Subsidiary of the
Borrower as often as the Administrative Agent or any Lender shall deem
advisable, (b) inspect and make extracts from and copies of the Borrower's, the
Parent's and each Subsidiary of the Borrower's books and records, and (c)
discuss with the Parent's, the Borrower's and each Subsidiary's directors,
officers, employees and, after notice to the Borrower, the auditors of Borrower
and the Parent, its business, assets, liabilities, financial positions, results
of operations and business prospects.
6.08. Payment of Debt for Borrowed Money. The Borrower shall, and
shall cause the Parent and each Subsidiary of the Borrower to, pay its Debt for
Borrowed Money when and as the same becomes due.
65
6.09. Use of Proceeds. The Borrower shall use the proceeds of Advances
solely as set forth in Section 2.15 hereof.
6.10. Indemnity.
(a) The Borrower agrees to defend, protect, indemnify and hold harmless
the Administrative Agent, each Lender, each of their respective Affiliates, and
each of their respective (including such Affiliates') officers, directors,
employees, agents, attorneys, shareholders and consultants (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth herein) of each of the foregoing
(collectively, "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees (whether
direct, indirect or consequential and whether based on any federal, state, or
local laws and regulations, under common law or at equitable cause, or on
contract, tort or otherwise, arising from or connected with the past, present or
future operations of the Borrower or its predecessors in interest, in any manner
relating to or arising out of this Agreement, the Loan Papers, or any act, event
or transaction or alleged act, event or transaction relating or attendant
thereto, the making of any participations in the Advances and the management of
the Advances, including in connection with, or as a result, in whole or in part,
of any negligence of Administrative Agent or any Lender (other than those
matters raised exclusively by a participant against the Administrative Agent or
any Lender and not the Borrower), or the use or intended use of the proceeds of
the Advances hereunder, or in connection with any investigation of any potential
matter covered hereby, but excluding, in the case of each Indemnitee, any claim
or liability that arises as the result of the gross negligence or willful
misconduct of such Indemnitee, as finally judicially determined by a court of
competent jurisdiction (collectively, the "Indemnified Matters").
(b) In addition, the Borrower shall periodically, upon request,
reimburse each Indemnitee for its reasonable legal and other actual expenses
(including the cost of any investigation and preparation) incurred in connection
with any Indemnified Matter. The reimbursement and indemnity obligations under
this Section shall be in addition to any liability which the Borrower may
otherwise have, shall extend upon the same terms and conditions to each
Indemnitee, and shall be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of the Borrower, the
Administrative Agent, the Lenders and all other Indemnitees. This Section shall
survive any termination of this Agreement and payment of the Obligations.
6.11. Environmental Law Compliance. The use which the Parent, the
Borrower or any Subsidiary of the Borrower intends to make of any real Property
owned by it will not result in the disposal or other release of any hazardous
substance or solid waste on or to such real Property in violation of any
Environmental Law. As used herein, the terms "hazardous substance" and
"release" as used in this Section shall have the meanings
66
specified in CERCLA (as defined in the definition of applicable Environmental
Laws), and the terms "solid waste" and "disposal" shall have the meanings
specified in RCRA (as defined in the definition of applicable Environmental
Laws); provided, however, that if CERCLA or RCRA is amended so as to broaden the
meaning of any term defined thereby, such broader meaning shall apply subsequent
to the effective date of such amendment; and provided further, to the extent
that any other law applicable to the Parent, the Borrower, any Subsidiary of the
Borrower or any of their Properties establishes a meaning for "hazardous
substance," "release," "solid waste," or "disposal" which is broader than that
specified in either CERCLA or RCRA, such broader meaning shall apply. The
Borrower agrees to indemnify and hold the Administrative Agent and each Lender
harmless from and against, and to reimburse them with respect to, any and all
claims, demands, causes of action, loss, damage, liabilities, costs and expenses
(including attorneys' fees and courts costs) of any kind or character, known or
unknown, fixed or contingent, asserted against or incurred by any of them at any
time and from time to time by reason of or arising out of (a) the failure of the
Parent, the Borrower or any Subsidiary of the Borrower to perform any obligation
hereunder regarding asbestos or applicable Environmental Laws, (b) any violation
on or before the Release Date of any applicable Environmental Law in effect on
or before the Release Date, and (c) any act, omission, event or circumstance
existing or occurring on or prior to the Release Date (including without
limitation the presence on such real Property or release from such real Property
of hazardous substances or solid wastes disposed of or otherwise released on or
prior to the Release Date), resulting from or in connection with the ownership
of the real Property, regardless of whether the act, omission, event or
circumstance constituted a violation of any applicable Environmental Law at the
time of its existence or occurrence, or whether the act, omission, event or
circumstance is caused by or relates to the negligence of any indemnified
Person; provided that, the Borrower shall not be under any obligation to
indemnify the Administrative Agent or any Lender to the extent that any such
liability arises as the result of the gross negligence or willful misconduct of
such Person, as finally judicially determined by a court of competent
jurisdiction, or for any event which is both not caused by the Parent, the
Borrower or any Subsidiary of the Borrower and occurs after any foreclosure by
the Lenders on any specific Property. The provisions of this paragraph shall
survive the Release Date and shall continue thereafter in full force and effect.
6.12. Interest Rate Protection Agreements. By no later than September
30, 1999, the Borrower will enter into an Interest Rate Protection Agreement on
terms acceptable to the Administrative Agent providing for interest rate
protection for one year for 50% of the principal of the Obligations outstanding
on September 30, 1999, and the Borrower shall thereafter, until the third
anniversary of the Closing Date, maintain an Interest Rate Protection Agreement
in effect at all times on terms acceptable to the Administrative Agent and
providing for an interest rate protection for not less than 50% of the entire
principal of the Obligations.
6.13. Issuance and Pledge of Capital Stock of the Borrower. Prior to
or simultaneous with the issuance by the Borrower of any Capital Stock to any
Person and/or the acquisition by the Parent, the Borrower or any Subsidiary of
the Parent or the Borrower of any Capital Stock, the Borrower shall, and shall
cause the Parent to, cause such Capital Stock to be pledged to the
Administrative Agent on
67
behalf of Lenders to secure the Obligations in accordance with documentation
substantially in the form of Exhibit J hereto, as applicable.
---------
6.14. Continued Status as a Real Estate Investment Trust; Prohibited
Transactions. Parent will either (a) (i) continue to be qualified as a real
estate investment trust as defined in Section 856 of the Code, (ii) not engage
in any "prohibited transactions" as defined in Section 857(b)(6)(B)(iii) or (C)
of the Code, (iii) continue to satisfy the conditions and limitations set forth
in Sections 856(b) and 856(c) of the Code and (iv) will do all acts necessary to
continue to be entitled to a dividend paid deduction under Section 857 of the
Code, or (b) elect to not maintain its REIT Status and notify the Administrative
Agent and each Lender of its decision in writing in accordance with the
provisions of Section 7.04(e) hereof. The Borrower and each of its Subsidiaries
will either (a) continue to be a Qualified REIT Subsidiary so long as the Parent
remains a REIT, or (b) elect not to qualify as a Qualified REIT Subsidiary and
notify the Administrative Agent and each Lender of its decision in writing in
accordance with the provisions of Section 7.04(e) hereof.
6.15. Tenant Leases, Ground Leases and Fee Owned Property.
(a) Tenant Leases and Fee Owned Properties. The Borrower and each
--------------------------------------
Subsidiary of the Borrower shall, after the Closing Date, only enter into new
Tenant Leases, acquire new Tenant Leases or become party to any Tenant Leases
which are not Oral Tenant Leases provided that, the Borrower is permitted to
have Oral Tenant Leases so long as the sum of the aggregate Tenant Lease
Revenues from all Oral Tenant Leases, at no time after the 90th day after the
Closing Date exceeds 10% of the total revenues of the Borrower and its
Subsidiaries for the most recently completed calendar month during the term of
this Agreement. The Borrower covenants that it will use commercially reasonable
efforts to insure that each Tenant Lease (a) is not oral and is subject to
written agreement, (b) does not prohibit or render unenforceable or void any
Lien of the Administrative Agent or any foreclosure and/or operation of the
Tower on which such Tenant Lease is located by the Lenders, whether by
contractual provision, operation of law or otherwise, and (c) does not have any
provision preventing, hindering or prohibiting the Administrative Agent from
directly receiving the rents, receivables or other Tenant Lease Revenues from
the lessee (or the effect of which prevents, hinders or prohibits such action by
the operation of Law). The Borrower shall use commercially reasonable efforts
to immediately provide the Lenders with each item required on Schedule 2.16
-------------
hereto with respect to each piece of fee owned real Property in accordance with
the terms of Schedule 2.16 hereto, prior to and immediately after the Closing
-------------
Date, and prior to and immediately after each Permitted Acquisition or other
creation or acquisition of any real Property by the Borrower or any Subsidiary
of the Borrower.
(b) Ground Leases. The Borrower and each Subsidiary of the Borrower
-------------
shall, after the Closing Date, use its best efforts to only enter into new
Ground Leases which are substantially in the form set forth on Exhibit K hereto,
---------
or with such other provisions as are approved by the Administrative Agent in
writing. The Borrower shall use commercially reasonable efforts to immediately
provide the Lenders with respect to each Ground Lease, Estoppel and Attornment
Language immediately after each Permitted Acquisition or other creation or
acquisition of any real Property by the Borrower or any Subsidiary of the
Borrower.
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(c) Breach of Section 6.15(a) above. In the event any provision of Section
-------------------------------
6.15(a) above is breached, subject to the last sentence of this Section 6.15(c),
the Applicable Margin shall increase by .25% per annum, effective the date of
such breach under Section 6.15(a) above, and shall increase every 30 days
thereafter (effective each 31st date following the preceding increase) by .25%
per annum (but in no event shall the interest rate increase under this Section
6.15(c) by more than .25% per annum per 30 day period) until the earlier of (i)
compliance with this Section 6.15, or (ii) such time as the per annum interest
rate is equal to the Highest Lawful Rate (where the interest rate will remain
until the Borrower is in compliance). If, on the date six months after the date
of any breach, such breach is still in effect, then all Tenant Lease Revenues
from any Oral Tenant Lease in excess of the ten percent limitation, will be
excluded from revenues for the purpose of determining EBITDA in connection with
any determination of (I) the Leverage Ratio (with respect to the determination
of Section 8.01(a) hereof and the Applicable Margin), the Consolidated Leverage
Ratio in Section 8.01(b) hereof, the consolidated interest coverage ratio set
forth in Section 8.01(c) hereof, the pro forma debt service coverage ratio set
forth in Section 8.01(d) hereof and the fixed charge coverage ratio set forth in
Section 8.01(e) hereof, and such exclusion from EBITDA for such purposes will
continue until five Business Days after the date the Borrower delivers to the
Administrative Agent a certificate of an Authorized Officer certifying that
there exists no breach under Section 6.15(a) above, in detail satisfactory to
the Administrative Agent. If there exists no Default or Event of Default upon
giving effect to any exclusion from EBITDA in accordance with the provisions set
forth above, the interest rate shall be calculated without giving effect to any
increase in the Applicable Margin set forth in this Section 6.15(c).
(d) Real Estate Collateral.
----------------------
(i) Fee Owned Property. The Borrower shall, within 60 days after the
------------------
acquisition by the Borrower or any of its Subsidiaries of any owned real
property, provide or cause to be provided to the Administrative Agent on
behalf of itself and the Lenders with a first and prior mortgage or deed of
trust for each such property securing the Obligations in form and substance
substantially similar to the previously filed mortgages/deeds of trust.
The Borrower also agrees to provide (or to cause to be provided) all such
documents and instruments required by the Administrative Agent to fully
effect the foregoing, including, without limitation, providing the
Administrative Agent with UCC-1's, new security agreements, mortgages,
deeds of trust, appraisals, surveys, hazard insurance, UCC-11 searches, Tax
and Lien searches, intellectual property documentation and registration and
other similar types of documents, consents, authorizations, Licenses,
instruments and agreements relating to all Property of the Borrower and its
Subsidiaries as reasonably requested by the Administrative Agent from time
to time.
(ii) Leasehold Property. The Borrower shall use commercially reasonable
------------------
efforts to deliver to the Administrative Agent, within 60 days after each
Permitted Acquisition, a list of each leasehold site acquired by the
Borrower, the purpose each such leased site serves and Estoppel and
Attornment Language for each such site.
(iii)Fee Owned Property Existing on the Closing Date. With respect to
-----------------------------------------------
fee owned property of the Borrower and its Subsidiaries in existence on the
Closing Date and not
69
subject to a mortgage or deed of trust on the Closing Date, all such
property shall be treated as if such property were acquired on the Closing
Date in order to determine compliance with Section 6.15(d)(i) above.
6.16. Acquisitions, Generally. In connection with any acquisition made
by the Borrower during the term of this Agreement, the Borrower shall, in
addition to the requirements set forth in Sections 4.04, 6.15 and 6.18 (to the
extent applicable) hereof, with respect to individual Permitted Acquisitions in
excess of $20,000,000 and any series of related Permitted Acquisitions which in
the aggregate exceed $20,000,000, (a) deliver notice to Administrative Agent at
such time prior to the proposed acquisition date as is reasonable under the
circumstances, together with (or, the following may be delivered later than the
notice (but still prior to the proposed acquisition), so long as such delivery
is reasonable under the circumstances, and copies of agreements are delivered
promptly upon execution of each such agreement: (i) a detailed description of
the proposed Permitted Acquisition in form reasonably acceptable to the
Administrative Agent, a description and location of all fee owned real property,
all Towers and all other assets (together with all legal descriptions of all
real property (fee owned) available at such time), (ii) the address of any
office acquired, (iii) the most recent financial statements with respect to the
acquired assets and/or Person, and to the extent available, the most recent
audited financial statements, and (iv) a copy of the purchase agreement,
schedules thereto and all related documentation (unless such schedules or
documentation are to be delivered by the seller, in which case the Borrower
shall deliver drafts and originals of such schedules and documentation promptly
upon receipt by the Borrower if later than ten days prior to closing), and (b)
prior to the consummation of the acquisition a statement certified by an
Authorized Officer that (i) the proposed transaction complies with the
definition of Permitted Acquisition set forth in Article I hereof, and (ii) no
Default or Event of Default exists prior to or after giving effect to any
requested Advance or the consummation of such acquisition, or will exist upon
consummation of the proposed acquisition and related borrowings and
transactions, together with a pro forma Compliance Certificate computed after
giving effect to such acquisition and borrowings (A) for acquisitions having
purchases prices in excess of $20,000,000 but less than $50,000,000, evidencing
compliance with the terms of this Agreement for the lesser of two years after
the consummation of the proposed acquisition or the remainder of the term of
this Agreement, together with all projections of the Parent, the Borrower and
any acquired assets and/or Person used to compute the Compliance Certificate
(and, in each case, to the extent that the Parent, the Borrower or any
Subsidiary of the Borrower has prepared or has in its possession projections
later than two years after any such proposed acquisitions, the Borrower shall
deliver such projections to the Administrative Agent) and (B) for acquisitions
having purchases prices in excess of $50,000,000, evidencing compliance with the
terms of this Agreement for the remainder of the term of this Agreement,
together with all projections of the Parent, the Borrower and any acquired
assets and/or Person used to compute the Compliance Certificate.
6.17. Year 2000. The Borrower will promptly notify the Administrative
Agent in the event the Borrower discovers or determines that any computer
application material to the business and operations of the Borrower, the Parent
or any of their respective Subsidiaries will not be Year 2000 Compliant as of
January 1, 2000.
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ARTICLE VII. INFORMATION COVENANTS
So long as any of the Obligations or Canada Obligations are outstanding and
unpaid or any portion of either of the Commitment or any Letter of Credit is
outstanding (whether or not the conditions to borrowing have been or can be
fulfilled), the Borrower shall furnish or cause to be furnished to each Lender:
7.01. Quarterly Financial Statements and Information. Within 45 days
after the end of each fiscal quarter, consolidated and consolidating balance
sheets of Parent, the Borrower and its Subsidiaries as at the end of such
quarter and the related consolidated and consolidating statements of income and
consolidated statements of changes in cash for such quarter and for the elapsed
portion of the year ended with the last day of such quarter, all of which shall
be certified by an Authorized Officer, to, in his or her opinion, present fairly
in all material respects, in accordance with GAAP, the financial position and
results of operations of the Parent, the Borrower and its Subsidiaries as at the
end of and for such period, and for the elapsed portion of the year ended with
the last day of such period.
7.02. Annual Financial Statements and Information; Certificate of No
Default.
(a) Within 120 days after the end of each fiscal year, a copy of (i) the
consolidated balance sheet of the Parent, the Borrower and its Subsidiaries, as
of the end of the current and prior fiscal years and (ii) consolidated
statements of earnings, statements of changes in shareholders' equity, and
statements of changes in cash as of and through the end of such fiscal year, all
of which are prepared in accordance with GAAP, and certified by independent
certified public accountants acceptable to the Lenders, whose opinion shall be
in scope and substance in accordance with generally accepted auditing standards
and shall be unqualified.
(b) As soon as available, but in any event within 60 days following the
end of each fiscal year, a copy of the annual consolidated operating budget of
the Borrower, the Parent, and its Subsidiaries for the succeeding fiscal year.
7.03. Compliance Certificates. At the time financial statements are
furnished pursuant to Section 7.01 hereof and Section 7.02 hereof, a Compliance
Certificate.
71
7.04. Copies of Other Reports and Notices.
(a) Promptly upon their becoming available, a copy of (i) all material
reports or letters submitted to the Parent, the Borrower or any Subsidiary of
the Borrower by accountants in connection with any annual, interim or special
audit, including without limitation any report prepared in connection with the
annual audit referred to in Section 7.03 hereof, and any other comment letter
submitted to management in connection with any such audit, (ii) each financial
statement, report, notice or proxy statement sent by the Parent, the Borrower or
any Subsidiary of the Borrower to stockholders generally, (iii) each regular or
periodic report and any registration statement or prospectus (or material
written communication in respect of any thereof) filed by the Parent, the
Borrower or any Subsidiary of the Borrower with any securities exchange, with
the Securities and Exchange Commission or any successor agency, and (iv) all
press releases concerning material financial aspects of the Parent, the Borrower
or any Subsidiary of the Borrower;
(b) Promptly upon becoming aware that (i) the holder(s) of any note(s) or
other evidence of indebtedness or other security of the Parent, the Borrower or
any Subsidiary of the Borrower in excess of $250,000 in the aggregate has given
notice or taken any action with respect to a breach, failure to perform, claimed
default or event of default thereunder, (ii) any party to any material Capital
Lease of the Borrower or any Subsidiary of the Borrower has given notice or
taken any action with respect to a breach, failure to perform, claimed default
or event of default thereunder, (iii) any occurrence or non-occurrence of any
event which constitutes or which with the passage of time or giving of notice or
both could constitute a material breach by the Parent, the Borrower or any
Subsidiary of the Borrower under any material agreement or instrument other than
this Agreement to which the Parent, the Borrower or any Subsidiary of the
Borrower is a party or by which any of their Properties may be bound, or (iv)
any event, circumstance or condition which could reasonably be expected to
constitute a Material Adverse Change, a written notice specifying the details
thereof (or the nature of any claimed default or event of default) and what
action is being taken or is proposed to be taken with respect thereto;
(c) Promptly upon receipt thereof, information with respect to and copies
of any notices received from the FCC, the FAA or any other federal, state or
local regulatory agencies or any tribunal relating to any order, ruling, law,
information or policy that relates to a breach of or noncompliance with the
Communications Act, or might result in the payment of money by the Parent, the
Borrower or any Subsidiary of the Borrower in an amount of $250,000 or more in
the aggregate, or otherwise constitute a Material Adverse Change, or result in
the loss or suspension of any material License;
(d) Promptly upon receipt from any governmental agency, or any
government, political subdivision or other entity, any material notice,
correspondence, hearing, proceeding or order regarding or affecting the Parent,
the Borrower, any Subsidiary of the Borrower, or any of their Properties or
businesses not in the ordinary course of business, a copy of such notice,
correspondence, hearing, proceeding or order;
(e) Promptly upon and in any event within forty-eight hours after the
Borrower first has knowledge of (i) the Parent failing to or electing to, as
appropriate, (A) continue to qualify as
72
a real estate investment trust as defined in Section 856 of the Code or (B)
maintain its REIT Status, (ii) any act by the Parent causing the election by the
Parent or the Borrower, as applicable, to be taxed as a real estate investment
trust to be terminated, (iii) any act causing the Parent to be subject to the
taxes imposed by Section 857(b)(6) of the Code, (iv) the Parent failing to be
entitled to a dividends paid deduction under Section 857 of the Code, (v) the
Parent failing to satisfy any condition or limitation set forth in Section
856(b) or 856(c) of the Code, (vi) any challenge by the Internal Revenue Service
to the Parent's REIT Status, (vii) the Borrower or any Subsidiary of Borrower
failing to be a Qualified REIT Subsidiary, (viii) any challenge by the Internal
Revenue Service to the status of Borrower or any Subsidiary of Borrower as a
Qualified REIT Subsidiary, or (ix) any other REIT Conversion, immediate
telephonic and subsequent written notice within forty-eight hours of any such
occurrence or circumstance; and
(f) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the assets, business, liabilities, financial position, projections, results of
operations or business prospects of the Parent, the Borrower and its
Subsidiaries that is within the Borrower's control, as the Administrative Agent
or any Lender may reasonably request.
7.05. Notice of Litigation, Default and Other Matters. Prompt notice
of the following events after the Borrower has knowledge or notice thereof:
(a) The commencement of all proceedings and investigations by or before
the FCC, the FAA or any other governmental body, and all other actions and
proceedings in any court or before any arbitrator involving claims for damages
(including punitive damages) in excess of $250,000 in the aggregate (after
deducting the amount with respect to the Parent, the Borrower or any Subsidiary
of the Borrower is insured), against or in any other way relating directly to
the Parent, the Borrower, any Subsidiary of the Borrower, or any of their
Properties or businesses;
(b) Promptly upon the happening of any condition or event which
constitutes a Default, a written notice specifying the nature and period of
existence thereof and what action is being taken or is proposed to be taken with
respect thereto; and
(c) Any Material Adverse Change with respect to the business, assets,
liabilities, financial position, results of operations or prospective business
of the Parent, the Borrower or any Subsidiary of the Borrower.
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7.06. ERISA Reporting Requirements.
(a) Promptly and in any event (i) within 30 days after the Borrower or
any member of its Controlled Group knows or has reason to know that any ERISA
Event described in clause (a) of the definition of ERISA Event or any event
described in Section 4063(a) of ERISA with respect to any Plan of the Borrower
or any member of its Controlled Group has occurred, and (ii) within 10 days
after the Borrower or any member of its Controlled Group knows or has reason to
know that any other ERISA Event with respect to any Plan of the Borrower or any
member of its Controlled Group has occurred or a request for a minimum funding
waiver under Section 412 of the Code with respect to any Plan of the Borrower or
any member of its Controlled Group, a written notice describing such event and
describing what action is being taken or is proposed to be taken with respect
thereto, together with a copy of any notice of event that is given to the PBGC;
(b) Promptly and in any event within two Business Days after receipt
thereof by the Borrower or any member of its Controlled Group from the PBGC,
copies of each notice received by the Borrower or any member of its Controlled
Group of the PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(c) Promptly and in any event within 30 days after the filing thereof by
the Borrower or any member of its Controlled Group with the United States
Department of Labor, the Internal Revenue Service or the PBGC, copies of each
annual and other report (including Schedule B thereto) with respect to each
Plan;
(d) Promptly and in any event within 30 days after receipt thereof, a
copy of any notice, determination letter, ruling or opinion the Borrower or any
member of its Controlled Group receives from the PBGC, the United States
Department of Labor or the Internal Revenue Service with respect to any Plan;
(e) Promptly, and in any event within 10 Business Days after receipt
thereof, a copy of any correspondence the Borrower or any member of its
Controlled Group receives from the Plan Sponsor (as defined by Section
4001(a)(10) of ERISA) of any Plan concerning potential withdrawal liability
pursuant to Section 4219 or 4202 of ERISA, and a statement from the chief
financial officer of the Borrower or such member of its Controlled Group setting
forth details as to the events giving rise to such potential withdrawal
liability and the action which the Borrower or such member of its Controlled
Group is taking or proposes to take with respect thereto;
(f) Notification within 30 days of any material increases in the benefits
of any existing Plan which is not a Multiemployer Plan, or the establishment of
any new Plans, or the commencement of contributions to any Plan to which the
Borrower or any member of its Controlled Group was not previously contributing;
(g) Notification within three Business Days after the Borrower or any
member of its Controlled Group knows or has reason to know that the Borrower or
any such member of its Controlled Group has or intends to file a notice of
intent to terminate any Plan under a distress termination within the meaning of
Section 4041(c) of ERISA and a copy of such notice; and
74
(h) Promptly after receipt of written notice of commencement thereof,
notice of all actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Borrower or any member of its Controlled Group with
respect to any Plan.
7.07. Fee Owned Property, Ground Leases and Tenant Leases.
(a) Quarterly Information Regarding Fee Owned Real Property, Ground Leases
----------------------------------------------------------------------
and Tenant Leases. The Borrower shall provide the Administrative Agent and each
-----------------
Lender, with quarterly updates delivered with the Compliance Certificate as
required in Section 7.03 hereof, certifying as to (i) all existing Ground Leases
and fee owned real property of the Borrower and the Subsidiaries of the
Borrower, (ii) the annual charges paid in connection with fee owned real
Property (if any) and Ground Leases of the Borrower and the Subsidiaries of the
Borrower, and the annual revenues generated by each Tower on each Ground Lease
and each fee owned real property, (iii) the termination date for each such
Ground Lease, (iv) whether there exists a material breach or default by any
party to any such Ground Lease (or alleged breach or default), and (v) a list of
all Oral Tenant Leases (detailing the reason for non-compliance) and all Tenant
Lease Revenues generated by such Oral Tenant Leases, all in form and substance
acceptable to the Administrative Agent. Each such quarterly update certificate
shall be certified by an Authorized Officer that there exists no breach of
Section 6.15 hereof and that there exists no Default or Event of Default under
Section 9.01(s) hereof.
(b) Annual Information Regarding Tenant Leases. The Borrower shall provide
------------------------------------------
the Administrative Agent and each Lender, with annual updates as to all existing
Tenant Leases delivered with the annual information required by Section 7.02
hereof, such information to show the Tenant Lease Revenues with respect to each
Tenant Lease, the termination date for each such Tenant Lease, whether such
Tenant Lease is a Oral Tenant Lease (and the reason therefor), and whether there
exists a material breach or default by any party to a (i) material Tenant Lease
or (ii) group of Tenant Leases which is material, all in form and substance
acceptable to the Administrative Agent.
ARTICLE VIII. NEGATIVE COVENANTS
So long as any of the Obligations or Canada Obligations are outstanding and
unpaid or any portion of either of the Commitment or any Letter of Credit is
outstanding (whether or not the conditions to borrowing have been or can be
fulfilled):
8.01. Financial Covenants.
(a) Leverage Ratio. The Borrower shall not permit the Leverage Ratio to be
more than the following ratios at the end of any fiscal quarter during the time
during the following time periods:
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Period Ratio
------ -----
From the Closing Date
through September 30, 1999 6.75 to 1.00
From October 1, 1999
through June 29, 2000 6.50 to 1.00
From June 30, 2000
through September 29, 2000 6.00 to 1.00
From September 30, 2000
through December 30, 2000 5.25 to 1.00
From December 31, 2000
through March 30, 2001 4.75 to 1.00
From March 31, 2001
through June 29, 2001 4.50 to 1.00
From June 30, 2001
through December 30, 2001 4.25 to 1.00
From December 31, 2001
through December 30, 2002 3.50 to 1.00
From December 31, 2002
and thereafter 3.00 to 1.00
(b) Consolidated Leverage Ratio. Commencing December 31, 2001, the
Borrower shall not permit the Consolidated Leverage Ratio to be more than the
following ratios at the end of any fiscal quarter during the time during the
following time periods:
Period Ratio
------ -----
From December 31, 2001
through December 30, 2002 7.50 to 1.00
From December 31, 2002
through December 30, 2003 6.50 to 1.00
From December 31, 2003
and thereafter 5.50 to 1.00
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(c) Consolidated Interest Coverage Ratio. The Borrower shall not permit,
at the end of any fiscal quarter, the ratio of (i) EBITDA for the preceding
twelve month period to (ii) cash Interest Expense for the preceding twelve month
period, to be less than the following ratios during the following time periods:
Period Ratio
------ -----
From the Closing Date
through June 29, 2000 1.75 to 1.00
From June 30, 2000
through December 30, 2000 2.00 to 1.00
From December 31, 2000
through March 30, 2001 2.25 to 1.00
From March 31, 2001
and thereafter 2.50 to 1.00
(d) Consolidated Pro Forma Debt Service Coverage Ratio. The Borrower shall
not permit at the end of any fiscal quarter the ratio of (a) Annualized EBITDA
to (b) Pro Forma Debt Service to be less than 1.50 to 1.00.
(e) Consolidated Fixed Charge Coverage Ratio. On March 31, 2001 and for
each fiscal quarter thereafter, the Borrower shall not permit at the end of any
fiscal quarter the ratio of (a) EBITDA for the most recently completed twelve
month period to (b) Fixed Charges paid in cash during the most recently
completed twelve month period, to be less than the following ratios during the
following time periods:
Period Ratio
------ -----
From March 31, 2001
through December 31, 2001 1.10 to 1.00
From January 1, 2002 and
thereafter 1.25 to 1.00
(f) Capital Expenditures. The Borrower shall not permit Capital
Expenditures (excluding acquisitions permitted to be consummated in accordance
with the terms of Section 8.06(b) hereof) made by the Parent, the Borrower and
its Subsidiaries in the aggregate, during the fiscal year 2000, to exceed
$40,000,000.
8.02. Debt for Borrowed Money. The Borrower shall not, and shall not permit
the Parent or any Subsidiary of the Borrower to, create, assume,
77
incur or otherwise become or remain obligated in respect of, or permit to be
outstanding, or suffer to exist any Debt for Borrowed Money or any preferred
Capital Stock, except:
(a) with respect to the Borrower and its Subsidiaries, Debt for Borrowed
Money under the Loan Papers;
(b) with respect to the Borrower, Debt for Borrowed Money described on
Schedule 8.02 hereto attached hereto in the principal amounts and as such Debt
-------------
for Borrowed Money exists as of the Closing Date;
(c) provided that no Default or Event of Default exists or would result
from the incurrence thereof and that the net proceeds of any such Debt or
preferred Capital Stock issuance be downstreamed by the Parent to the Borrower
as equity, the Parent may, so long as the aggregate amount of Second Parent
Issuance and the Bridge Debt incurred pursuant to subsections (i) and (ii) below
in the aggregate over the term of this Agreement do not exceed $250,000,000 AND
at no time shall the aggregate amount of outstanding Debt and preferred Capital
Stock under subsections (i) and (ii) below exceed $200,000,000 (except in
connection with any accretion), elect to:
(i) issue unsecured public Debt for Borrowed Money up to the maximum
aggregate amount at any one time outstanding of $200,000,000, except with
respect to any accretion (the "Second Parent Issuance"), and which such
Debt, notwithstanding the foregoing, (i) must be on terms and conditions
substantially similar to the Parent Senior Notes and the Parent Senior
Notes Documentation, (ii) may not be subject to an interest rate in excess
of 13.5% per annum, (iii) must have a scheduled maturity date later than
the Final Maturity Date, and must not be subject to any mandatory
repurchase, redemption, defeasance or any similar provision prior to the
Final Maturity Date, except to the extent there exists a Change of Control,
and in such event such Debt must provide for the repayment in full of the
Obligations prior to such redemption, repurchase, repayment or other
provision, (iv) may not contain covenants or other provisions more
restrictive than this Agreement and the other Loan Papers (including the
definitions), and may not prohibit any action or omission with respect to
this Agreement and the Loan Papers, and (v) shall provide for no principal
payments until the Obligations have been paid in full, and in-kind interest
payments only for a period of not less than the first five years after its
issuance; and
(ii) incur unsecured Debt for Borrowed Money and/or preferred Capital
Stock up to the maximum aggregate amount for both Debt for Borrowed Money
and preferred Capital Stock at any one time outstanding of $50,000,000,
except with respect to any accretion (such Debt for Borrowed Money or
preferred Capital Stock herein referred to as the "Bridge Debt"), and which
such Bridge Debt, notwithstanding the foregoing (i) must be payment in kind
only, and not subject to any cash interest payments, principal payments,
fees or otherwise, (ii) must have a scheduled maturity date not earlier
than the Final Maturity Date, (iii) must not be subject to any mandatory
repurchase, redemption, defeasance or any similar provision prior to the
Final Maturity Date and (iv) may not contain covenants or other provisions
more restrictive than this Agreement and the other
78
Loan Papers (including the definitions), and may not prohibit any action or
omission with respect to this Agreement and the Loan Papers;
(d) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower and the Parent,
unsecured Debt for Borrowed Money not to exceed $5,000,000 in the aggregate for
the Borrower and the Parent throughout the term of this Agreement;
(e) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower and the Parent,
secured Debt for Borrowed Money not to exceed $5,000,000 in the aggregate for
the Borrower and the Parent throughout the term of this Agreement;
(f) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower, accrued but unpaid
Earn-Out Liabilities;
(g) provided that no Default or Event of Default exists or would result
from the incurrence thereof, in addition to the Subordinated Debt the Parent is
entitled to incur in accordance with the terms of Section 8.02(c) above, if
there has not occurred a REIT Conversion, the Parent may incur Subordinated Debt
to the Shareholders, such Subordinated Debt not to exceed in principal face
amount in the aggregate for any taxable year, the amount necessary to enable the
Borrower to obtain the maximum possible deduction for dividends paid, as defined
in Section 561 of the Code and further described in Section 857 of the Code for
such year, taking into account the sum of all distributions previously made to
Shareholders permitted by Section 8.08(b)(iii) hereof for such fiscal year,
provided that, any determination under Section 857 of the Code shall take into
consideration for such purpose the necessity of increasing the aggregate amounts
distributed to reflect the fact that distributions in redemption of any
preferred return on any class of stock will be treated as being made partly from
earnings and profits and partly from capital;
(h) provided that no Default or Event of Default exists or would result
from the incurrence thereof, Debt for Borrowed Money incurred by the Borrower to
sellers in connection with Permitted Acquisitions, provided that (i) the amount
of such Debt shall not exceed, together with the amount of seller Debt described
on Schedule 8.02 hereto, $40,000,000, and (ii) in connection with the incurrence
-------------
of such Debt, a Letter of Credit shall be issued in the amount of such seller
Debt; and
(i) with respect to the Canada Sub, Debt for Borrowed Money in the form of
the Canada Indebtedness, and with respect to the Parent and the Borrower, Debt
for Borrowed Money under the Canada Guaranty.
8.03. Liens. The Borrower shall not, and shall not permit the Parent or
any Subsidiary of the Borrower to, create, assume, incur, permit or suffer to
exist, directly or indirectly, any Lien on any of its assets or Properties,
whether now owned or hereafter acquired, except Permitted Liens and Liens
securing the Canada Indebtedness and the Canada Guaranty. The Borrower shall
not, and shall not permit Parent or any Subsidiary of the Borrower to, agree
79
with any other Person that it shall not create, assume, incur, permit or suffer
to exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its assets or Properties.
8.04. Investments. The Borrower shall not, and shall not permit the Parent
or any Subsidiary of the Borrower to, make any Investment, except that the
Borrower may purchase or otherwise acquire and own:
(a) Marketable, direct obligations of, or guaranteed by, the United States
of America and maturing within 365 days of the date of purchase;
(b) Commercial paper issued by U.S. corporations that have a rating of A-
1/P-1 or better by Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings
Group, a Division of XxXxxx-Xxxx, Inc.;
(c) Certificates of deposit of domestic banks maturing within 365 days of
the date of purchase, which banks' debt obligations have one of the two highest
ratings obtainable from Xxxxx'x Investors Service, Inc. or Standard & Poor's
Ratings Group, a Division of XxXxxx-Xxxx, Inc.;
(d) Securities issued by U.S. corporations that have one of the two
highest ratings obtainable from Xxxxx'x Investors Service, Inc. or Standard &
Poor's Ratings Group, a Division of XxXxxx-Xxxx, Inc.;
(e) Investments in newly-formed or existing, wholly-owned Subsidiaries of
the Borrower, in each case (i) that are subject to the provisions hereof, (ii)
that are or immediately become party to the Subsidiary Guaranty and any security
documents required by the Administrative Agent, (iii) whose stock is pledged to
the Lenders to secure the Obligations pursuant to a pledge agreement
substantially identical in form and substance to the Borrower Pledge Agreement
and (iv) if the Parent has not notified the Administrative Agent and each Lender
of a REIT Conversion, such Subsidiaries must be Qualified REIT Subsidiaries;
(f) Accounts receivable that arise in the ordinary course of business and
are payable on standard terms;
(g) Investments in existence on the Closing Date which are described on
Schedule 8.04 hereto;
-------------
(h) Investments constituting Permitted Acquisitions permitted by Section
8.06(b) hereof;
(i) Investments in Pinnacle III so long as (i) such Investments are in
accordance with the terms of the PT Transactions, (ii) Pinnacle III becomes a
party to the Subsidiary Guaranty and executes any security documents required by
the Administrative Agent to grant a security interest in its assets in
accordance with the terms of Section 2.16(b) hereof and (iii) the Capital
80
Stock of Pinnacle III is pledged to the Lenders to secure the Obligations
pursuant to a pledge agreement substantially identical in form and substance to
the Borrower Pledge Agreement; and
(j) Certificates of deposit and Eurodollar time deposits with maturities
of one year or less from the date of acquisition, overnight bank deposits and
repurchase obligations having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States government
or any agency thereof, in each case, of either an Eligible Assignee or Xxxxx
Brothers Xxxxxxxx & Co., provided that such Investments do not exceed
$20,000,000 in the aggregate at any time outstanding.
8.05. Amendment and Waiver. The Borrower shall not, and shall not permit
the Parent or any Subsidiary of the Borrower to, enter into any amendment of any
term or provision, or accept any consent or waiver with respect to any such
provision, of (a) its articles of incorporation or by-laws in any manner
material and adverse to the Lenders, (b) any material provision of any material
Capital Lease in any manner material and adverse to the Lenders or (c) any
provision in any Ground Lease provision that is set forth on Exhibit K hereto.
---------
The Borrower shall not, nor shall it permit the Parent or any Subsidiary of the
Borrower to, amend or change (or take any action or fail to take any action the
result of which is an effective amendment or change) or accept any waiver or
consent with respect to, the Subordinated Debt or the Parent Senior Notes, the
Indenture or any other Parent Senior Notes Documentation, or any Second Parent
Issuance Documentation or any Bridge Debt, that would result in (a) an increase
in any principal, interest, fees, or other amounts payable under the
Subordinated Debt, the Parent Senior Notes Documentation, the Second Parent
Issuance Documentation or the Bridge Debt (including without limitation a waiver
or action that results in the waiver of any payment default under the
Subordinated Debt, the Bridge Debt, the Parent Senior Notes Documentation or the
Second Parent Issuance Documentation), (b) a change in any date fixed for any
payment of principal, interest, fees, or other amounts payable under the
Subordinated Debt, the Bridge Debt, the Parent Senior Notes Documentation or the
Second Parent Issuance Documentation (including, without limitation, as a result
of any redemption) to a date earlier than January 31, 2005, (c) a change in any
financial covenant in the Subordinated Debt, the Parent Senior Notes
Documentation, the Bridge Debt or the Second Parent Issuance Documentation to a
more restrictive provision for the Borrower, the Parent or any Subsidiary of the
Borrower, (d) an increase in any remedy or right (or any change that broadens
the rights or remedies) of the holders of the Subordinated Debt, the Bridge
Debt, the Parent Senior Notes Documentation or the Second Parent Issuance
Documentation, (e) a change in any covenant, term or provision in the
Subordinated Debt, the Bridge Debt, the Parent Senior Notes Documentation or the
Second Parent Issuance Documentation which would result in such term or
provision being more restrictive than the terms of this Agreement and the Loan
Papers, (f) a change in any term or provision of the Parent Senior Notes
Documentation that would alter the definition of Acquisition Debt or Section
1008 of the Indenture in a manner that would make it more restrictive or effect
the usage of the Revolver Loan or the Term Loan A, or (g) a change in any term
or provision of the Subordinated Debt, the Parent Senior Notes Documentation or
the Second Parent Issuance Documentation, or other document or instrument in
connection therewith that could have, in any material respect, an adverse effect
on the interests of the Lenders.
8.06. Liquidation, Disposition or Acquisition of Assets, Merger, New
Subsidiaries. The Borrower shall not, and shall not permit the Parent or any
Subsidiary of the Borrower to, at any time:
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(a) liquidate or dissolve itself (or suffer any liquidation or
dissolution) or otherwise wind up; or sell, lease, abandon, transfer or
otherwise dispose of all or any part of its assets, Properties or business,
other than in the ordinary course of business and other than assets that are
damaged or obsolete), provided that, (i) any Subsidiary of the Borrower can be
dissolved so long as the Borrower or a wholly-owned Subsidiary of the Borrower
acquires all such Subsidiary's assets; and (ii) so long as there exists no
Default or Event of Default both before and after giving effect to such sale (A)
and the Borrower complies fully with Section 2.05(c) hereof, Borrower may
consummate the sale of Towers (but not all or any substantial portion of Towers)
and (B) the Borrower may transfer certain rooftop assets acquired by the
Borrower in connection with the Motorola Acquisition to Pinnacle III in
accordance with the PT Transactions;
(b) acquire any assets, Property or business of any other Person except
(i) the Borrower and the Subsidiaries of the Borrower may acquire assets and
Property acquired in the ordinary course of business and (ii) provided no
Default or Event of Default exists or would result therefrom, the Borrower may
consummate transactions constituting Permitted Acquisitions;
(c) enter into any merger or consolidation, except that, so long as there
exists no Default or Event of Default and none is caused thereby, (i) any
Subsidiary of the Borrower can merge or consolidate into any other Subsidiary of
the Borrower, or so long as such transaction is in connection with a Permitted
Acquisition, into another Person, so long as a Subsidiary of the Borrower is a
survivor, or into the Borrower so long as the Borrower is the surviving
corporation, and (ii) another Person may be merged into the Borrower or any
Subsidiary of the Borrower in connection with a Permitted Acquisition, so long
as the Borrower or such Subsidiary is the surviving corporation; or
(d) create or acquire any Subsidiary, except as permitted by Section
8.04(e) hereof.
In connection with any asset sale permitted by this Section 8.06, Section 11.01
hereof or otherwise consented to by the Lenders in accordance with the terms of
this Agreement, the Administrative Agent is hereby authorized by each Lender to
(i) execute any and all releases deemed appropriate by it to release such assets
of the Borrower and the Subsidiaries of the Borrower constituting Collateral
from all Liens and security interests securing all or any portion of the
Obligations, (ii) return to the Borrower any such Collateral in the possession
of the Administrative Agent, and (iii) take such other action as the
Administrative Agent deems necessary or appropriate in connection with such
transaction and in furtherance of the effectuation thereof.
8.07. Guaranties; Contingent Liabilities. The Borrower shall not, and
shall not permit the Parent or any Subsidiary of the Borrower to, at any time
make or issue any Guaranty, or assume, be obligated with respect to, or permit
to be outstanding any Contingent Liabilities, except pursuant to the Loan
Papers, the Canada Indebtedness and the Canada Guaranty.
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8.08. Restricted Payments. The Borrower shall not, and shall not permit the
Parent or any Subsidiary of the Borrower to, directly or indirectly declare,
make or pay any Restricted Payment; provided, however
(a) any Subsidiary of the Borrower may declare and pay a Distribution to
the Borrower, and
(b) so long as there exists no Default or Event of Default immediately
before and after giving effect to any such transaction or payment,
(i) commencing April 30, 2000, the Borrower may make an annual
Restricted Payment in an aggregate amount not to exceed in any fiscal year,
the difference between Excess Cash Flow for the preceding calendar year and
the amount required by Section 2.05(a) hereof to repay the Obligations,
provided that, no such Restricted Payment may be made in any fiscal year of
the Borrower until the Borrower has fully complied with Section 2.05(a)
hereof with respect to such year,
(ii) the Borrower and the Parent may each make payments in kind on
its Subordinated Debt (but only in kind payments and no cash payments),
(iii) so long as there has not been a REIT Conversion, the Borrower
may annually make not more than two cash distributions to the Parent, who
must use such cash distributions to make distributions to the Shareholders,
each such distribution in an aggregate amount per taxable year equal to (A)
the amount of gross income actually includible by the Shareholders on their
Tax returns with respect to such taxable year solely as a result of the
operations of the Parent, the Borrower and its Subsidiaries, multiplied by
(B) the sum of the highest marginal Federal and highest marginal State
income tax rates applicable to one or more of the Shareholders,
(iv) so long as there has not been a REIT Conversion, the Borrower
may make one or more distributions with respect to any taxable year
constituting Subordinated Debt to the Parent, who, to the extent such
distribution is made by the Borrower may make one or more distributions
with respect to any taxable year constituting Subordinated Debt to the
Shareholders, each such distribution constituting Subordinated Debt not to
exceed in the aggregate an amount necessary to enable the Parent to obtain
the maximum possible deduction for dividends paid, as defined in Section
561 of the Code and further described in Section 857 of the Code for such
year, taking into account the sum of all distributions previously paid to
Shareholders in accordance with the terms of Section 8.08(b)(iii) above,
provided that, in connection with any such distribution, the Parent shall
take into consideration for such purpose the necessity of increasing the
aggregate amounts distributed to reflect the fact that distributions in
redemption of any preferred return on any class of stock will be treated as
being made partly from earnings and profits and partly from capital,
(v) the Borrower may make an annual distribution to Parent in an
amount not to exceed $25,000 to reimburse the Parent for its miscellaneous
expenses,
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(vi) until September 1, 2003, the Parent may make (A) payments in
kind only on the Parent Senior Notes (but only in kind payments and no cash
payments), in accordance with the terms of the Parent Senior Notes
Documentation, and (B) payments in kind only on the Second Parent Issuance
(but only in kind payments and no cash payments), in accordance with the
terms of the Second Parent Issuance Documentation,
(vii) the Parent may repay in its entirety the Bridge Debt, but only
so long as the Parent uses the proceeds of (i) Debt issued in accordance
with the terms of Section 8.02(c)(i) hereof to repay such Bridge Debt or
(ii) equity issued in accordance with the terms of Section 8.11 hereof to
repay such Bridge Debt, and
(viii) the Borrower may repay seller debt permitted to be incurred in
accordance with the terms of Section 8.02(h) hereof, so long as such
repayments are in accordance with the terms thereof; and
(c) the Canada Sub may make payments of principal, interest and fees on
the Canada Indebtedness.
8.09. Affiliate Transactions. The Borrower shall not, and shall not permit
the Parent or any Subsidiary of the Borrower to, at any time engage in any
transaction with an Affiliate, nor make an assignment or other transfer of any
of its assets or Properties to any Affiliate, on terms materially less
advantageous to the Parent, the Borrower or any Subsidiary of the Borrower than
would be the case if such transaction had been effected with a non-Affiliate,
except the PT Transactions, the agreements listed on Schedule 8.09 hereto and
-------------
except for Restricted Payments permitted to be paid under Section 8.08 hereof,
and as expressly permitted in Sections 8.02 and 8.04 hereof.
8.10. Compliance with ERISA. The Borrower shall not, and shall not permit
the Parent or any Subsidiary of the Borrower to, directly or indirectly, or
permit any member of its Controlled Group to directly or indirectly, (a)
terminate any Plan so as to result in any material (in the opinion of the
Majority Lenders) liability to the Borrower or any member of its Controlled
Group, (b) permit to exist any ERISA Event, or any other event or condition
which presents the risk of liability of the Borrower or any member of its
Controlled Group, (c) make a complete or partial withdrawal (within the meaning
of Section 4201 of ERISA) from any Multiemployer Plan so as to result in any
liability to the Borrower or any member of its Controlled Group, (d) enter into
any new Plan or modify any existing Plan so as to increase its obligations
thereunder except in the ordinary course of business consistent with past
practice which could result in any liability to the Borrower or any member of
its Controlled Group, or (e) permit the present value of all benefit
liabilities, as defined in Title IV of ERISA, under each Plan of the Borrower or
any member of its Controlled Group (using the actuarial assumptions utilized by
the PBGC upon termination of a plan) to exceed the fair market value of Plan
assets allocable to such benefits all determined as of the most recent valuation
date for each such Plan.
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8.11. Capital Stock. The Borrower shall not, and shall not permit the
Parent or any Subsidiary of the Borrower to (a) make or permit any transfer,
assignment, distribution, mortgage, pledge or gift of any shares of Pledged
Stock, and (b) issue any Capital Stock, provided that, (i) if there exists no
Default or Event of Default before and immediately after giving effect to such
issuance and the net proceeds of each such issuance of Capital Stock are
contributed to the Borrower as equity (except to the extent all or any portion
of any such issuance is used to repay Debt permitted to be repaid in accordance
with the terms of Section 8.08 hereof), the Parent may issue (A) common Capital
Stock of the Parent to any Person, and (B) preferred Capital Stock of the Parent
in accordance with the terms of Section 8.02(c)(ii) hereof, (ii) the Capital
Stock of the Borrower and its Subsidiaries may be pledged to secure the Canada
Guaranty, (iii) the Capital Stock of the Canada Sub may be pledged to secure the
Canada Indebtedness and the Canada Guaranty, and (iv) provided no Default or
Event of Default shall exist or result therefrom, Pinnacle III may issue Capital
Stock in accordance with the terms of the PT Transactions, in each case only so
long as such Capital Stock is pledged to the Administrative Agent on behalf of
the Lenders to secure the Obligations pursuant to documentation substantially in
the form of Exhibit J hereto.
---------
8.12. Sale and Leaseback. The Borrower shall not, and shall not permit the
Parent or any Subsidiary of the Borrower to, enter into any arrangement whereby
it sells or transfers any of its assets, and thereafter rents or leases such
assets, except that the Borrower may sell real estate that it owns and
thereafter lease it subject to a Ground Lease, provided that the Borrower
complies with the provisions of Sections 6.15 and 7.07 hereof as if the Borrower
had acquired such leased property.
8.13. Sale or Discount of Receivables. The Borrower shall not, and shall
not permit the Parent or any Subsidiary of the Borrower to, directly or
indirectly sell, with or without recourse, for discount or otherwise, any notes
or accounts receivable.
8.14. Limitation on Restrictive Agreements. The Borrower shall not, and
shall not permit the Parent or any Subsidiary of the Borrower to, enter into any
indenture, agreement, instrument, financing document or other arrangement which,
directly or indirectly, prohibits or restrains, or has the effect of prohibiting
or restraining, or imposes materially adverse conditions upon (a) any amendment
of, or waiver or consent to, any provision of this Agreement or any other Loan
Paper and (b) the granting of any Liens to secure the Obligations, and, except
with respect to the Parent Senior Notes, the Second Parent Issuance, the Bridge
Debt, the Canada Indebtedness and the Canada Guaranty: (i) the incurrence of
indebtedness, (ii) the granting of Liens, (iii) the making or granting of
Guarantees, (iv) the payment of dividends or Distributions, (v) the purchase,
redemption or retirement of any Capital Stock, (vi) the making of loans or
advances, (vii) transfers or sales of property or assets (including Capital
Stock) by the Parent, the Borrower or any of its Subsidiaries, (viii) the making
of Investments and (ix) any change of control or management.
8.15. Synthetic Leases. The Borrower shall not, nor shall it permit any
Subsidiary to, create any, or permit to exist, any Synthetic Lease.
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ARTICLE IX. EVENTS OF DEFAULT
9.01. Events of Default. Any one or more of the following shall be an
"Event of Default" hereunder, if the same shall occur for any reason whatsoever,
whether voluntary or involuntary, by operation of Law, or otherwise:
(a) The Borrower shall fail to pay any (i) principal payable under any Loan
Paper on the date due; or (ii) any interest, fees or other amounts payable
within three days of the date due;
(b) Any representation or warranty made or deemed made by any Obligor (or
any of its officers or representatives) under or in connection with any Loan
Paper shall prove to have been incorrect or misleading in any material respect
when made or deemed made;
(c) The Borrower shall fail to perform or observe any term or covenant
contained in Article VIII hereof or in Section 7.04(e) hereof;
(d) Any Obligor shall fail to perform or observe any other term or covenant
contained in any Loan Paper, other than those described in Sections 9.01(a), (b)
and (c) above or in Section 6.15(a) hereof, and such failure shall not be
remedied within thirty days following the earlier of the Borrower's knowledge of
such failure or notice from any Lender of the occurrence of such failure;
(e) Any of the following shall occur: (i) Any Loan Paper or material
provision thereof shall, for any reason, not be valid and binding on the Obligor
signatory thereto, or not be in full force and effect, or shall be declared to
be null and void; or (ii) the validity or enforceability of any Loan Paper shall
be contested by any Obligor; or (iii) any Obligor shall deny in writing that it
has any or further liability or obligation under its respective Loan Papers; or
(iv) any default or breach under any provision of any Loan Papers shall continue
after the applicable grace period, if any, specified in such Loan Paper;
(f) Any of the following shall occur: (i) any Obligor shall make an
assignment for the benefit of creditors or be unable to pay its debts generally
as they become due; (ii) any Obligor shall petition or apply to any Tribunal for
the appointment of a trustee, receiver, or liquidator of it, or of any
substantial part of its assets, or shall commence any proceedings relating to
any Obligor under any Debtor Relief Laws; (iii) any such petition or application
shall be filed, or any such proceedings shall be commenced, against any Obligor,
or an order, judgment or decree shall be entered appointing any such trustee,
receiver, or liquidator, or approving the petition in any such proceedings, and
such petition or application shall be consented to or uncontested by such
Obligor, or if contested by such Obligor, shall not be dismissed within 60 days
following the filing of such petition or application; (iv) any final order,
judgment, or decree shall be entered in any proceedings against any Obligor
decreeing its dissolution; or (v) any final order, judgment, or decree shall be
entered in any proceedings against any Obligor decreeing its split-up which
requires the divestiture of a substantial part of its assets;
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(g) Any of the following shall occur: (i) The Borrower or any other Obligor
shall fail to pay any Subordinated Debt, Debt evidenced by the Parent Senior
Notes, Debt evidenced by any Second Parent Issuance Documentation, Bridge Debt
or any other Debt, or obligations in respect of Capital Leases (other than Debt
under the Loan Papers) in an aggregate amount of $1,000,000 or more when due
(whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise), and such failure shall continue after the applicable grace period,
if any, specified in the agreement or instrument relating to such Debt; or (ii)
the Borrower or any other Obligor shall fail to perform or observe any term or
covenant contained in any agreement or instrument relating to any such Debt,
when required to be performed or observed, and such failure shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
and can result in acceleration of the maturity of such Debt; or (iii) any such
Debt shall be declared to be due and payable, or required to be prepaid,
mandatorily redeemed or repurchased (other than by a regularly scheduled
required prepayment), prior to the stated maturity thereof;
(h) Any Obligor shall have any final judgment(s) outstanding against it for
the payment of $1,000,000 or more, and such judgment(s) shall remain unstayed,
in effect, and unpaid for the period of time after which the judgment holder may
and may cause the creation of Liens against or seizure of any of its Property;
(i) Any of the following shall have occurred: (i) Any ERISA Event shall
have occurred with respect to a Plan of the Borrower, and the sum of the
Insufficiency of such Plan and liabilities relating thereto is equal to or
greater than $1,000,000 or (ii) the Borrower or any ERISA Affiliate of the
Borrower shall have committed a failure described in Section 302(f)(l) of ERISA,
and the amount determined under Section 302(f)(3) of ERISA is equal to or
greater than $1,000,000;
(j) The Borrower or any ERISA Affiliate of the Borrower shall have been
notified by the sponsor of a Multiemployer Plan that (A) it has incurred
Withdrawal Liability to such Plan in an amount that, exceeds $1,000,000 or
requires payments exceeding $1,000,000 per annum, or (B) such Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result thereof the aggregate annual contributions to all Multiemployer
Plans in reorganization or being terminated is increased over the amounts
contributed to such Plans for the preceding Plan year by an amount exceeding
$1,000,000;
(k) Any Obligor shall be required under any Environmental Law (i) to
implement any remedial, neutralization, or stabilization process or program, the
cost of which would constitute a Material Adverse Change, or (ii) to pay any
penalty, fine, or damages in an aggregate amount which would constitute a
Material Adverse Change;
(l) Any of the following shall have occurred: (i) Any Property (whether
leased or owned), or the operations conducted thereon by any Obligor or any
current or prior owner or operator thereof (in the case of real Property), shall
violate or have violated any applicable Environmental Law, if such violation
would constitute a Material Adverse Change; or (ii) such Obligor shall not
obtain or maintain any License required to be obtained or filed under any
Environmental Law in connection with the use of such Property and assets,
including without
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limitation past or present treatment, storage, disposal, or release of Hazardous
Materials into the environment, if the failure to obtain or maintain the same
would constitute a Material Adverse Change;
(m) Any of the following shall have occurred: (i) Any Loan Paper shall for
any reason (other than pursuant to the terms thereof) cease to create a valid
and perfected first priority Lien in the Collateral purported to be covered
thereby (except as permitted by the terms of this Agreement or consented to by
the Lenders); (ii) any Loan Paper shall for any reason cease to secure the
Obligations purported to be secured thereby (except as permitted by the terms of
this Agreement or consented to by the Lenders); or (iii) less than 100% of the
Capital Stock of the Borrower shall be pledged to secure the Obligations;
(n) Any of the following shall have occurred: (i) A final non-appealable
order is issued by any Tribunal, including, but not limited to, the FCC, the FAA
or the United States Justice Department, requiring Borrower to divest a
substantial portion of its assets pursuant to any antitrust, restraint of trade,
unfair competition, industry regulation, or similar Laws, or (ii) any Tribunal
shall condemn, seize, or otherwise appropriate, or take custody or control of
all or any substantial portion of the assets of Borrower;
(o) Any of the following shall have occurred if the effect thereof is to
cause a Material Adverse Change: (i) Any License whether presently existing or
hereafter granted to or obtained by Borrower or any Subsidiary of the Borrower
shall expire without renewal on or before payment in full of the Notes and all
Obligations hereunder, or be suspended or revoked, or (ii) Borrower or any
Subsidiary of the Borrower shall become subject to any injunction or other order
affecting or which may affect Borrower's or a Subsidiary of the Borrower's
present or proposed operations under any such License;
(p) The occurrence of one of more of the following events: (i) the
occurrence of a Change of Control, or (ii) the Parent shall own less than 100%
of the Capital Stock of the Borrower, or the Borrower shall own less than 100%
of its Subsidiaries; or (iii) any one of the President, Chief Executive Officer,
Chief Financial Officer or Chief Operating Officer of the Borrower shall, for
any reason, fail to perform the primary roles and functions of such position on
behalf of the Borrower (whether pursuant to death, extended disability,
termination, resignation or otherwise) AND the Borrower shall not have replaced
such senior executive with a new employee reasonably acceptable to the Majority
Lenders within 60 days after such failure;
(q) For any taxable year, the Borrower shall have made any Restricted
Payment to the Parent, or the Parent shall have made any Restricted Payment to
any Shareholder in accordance with the terms of Section 8.08(b)(iii) hereof for
the tax liability of any Shareholder for such taxable year, and the Borrower or
the Parent shall also have paid or be subject to any Federal income tax on any
amount in excess of five percent of the Borrower's real estate investment trust
taxable income for such taxable year;
(r) Any civil action, suit or proceeding shall be commenced against
Borrower, the Parent, or any Subsidiary of the Borrower under any federal or
state racketeering statute (including, without limitation, the Racketeer
Influenced and Corrupt Organization Act of 1970)
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("RICO") and such suit shall be adversely determined by a court of applicable
jurisdiction and forfeiture shall commence against assets in the aggregate
having fair market value of $1,000,000 or more, or any criminal action or
proceeding shall be commenced against the Borrower, the Parent, or any
Subsidiary of the Borrower under any federal or state racketeering statute
(including, without limitation, RICO);
(s) With respect to Parent, Borrower or any Subsidiary of the Borrower, if
the Parent and the Borrower have not notified the Administrative Agent in
accordance with the terms of Section 7.04(e) hereof of a REIT Conversion, (i)
any such entity fails to pay dividends in the amount of taxable income necessary
to maintain Parent's REIT Status, or (ii) Parent shall fail to maintain its REIT
Status or (iii) Borrower or any Subsidiary of Borrower shall fail to maintain
its status as a Qualified REIT Subsidiary;
(t) A "Change of Control" as that term is defined in the Parent Senior
Notes Documentation or any Second Parent Issuance Documentation shall occur;
(u) The Borrower shall not have received an equity contribution within five
days after the payment by the Borrower of cash dividends in accordance with the
terms of Sections 8.08(b)(iii) and (iv) hereof ("Tax Dividends"), in an amount
not less than the difference between (i) the aggregate amount of such Tax
Dividends and (ii) the Shareholder's maximum tax liability as a result of the
operations of the Borrower (after giving effect to all tax benefits); or
(v) There shall exist any default or breach with respect to any of the
Canada Indebtedness Agreements.
9.02. Remedies upon Default. If an Event of Default described in Section
9.01(f) shall occur with respect to any Obligor, the aggregate unpaid principal
balance of and accrued interest on all Advances shall, to the extent permitted
by applicable Law, thereupon automatically become due and payable concurrently
therewith, without any action by Administrative Agent or any Lender, and without
diligence, presentment, demand, protest, notice of protest or intent to
accelerate, or notice of any other kind, all of which are hereby expressly
waived. Subject to the foregoing sentence, if any Event of Default shall occur
and be continuing, Administrative Agent may at its election, or shall at the
direction of the Majority Lenders, do any one or more of the following:
(a) Declare the entire unpaid balance of all Advances immediately due and
payable, whereupon it shall be due and payable without diligence, presentment,
demand, protest, notice of protest or intent to accelerate, or notice of any
other kind (except notices specifically provided for under Section 9.01 hereof),
all of which are hereby expressly waived (except to the extent waiver of the
foregoing is not permitted by applicable Law);
(b) Terminate the Commitment;
(c) Reduce any claim of Administrative Agent and Lenders to judgment;
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(d) Demand (and the Borrower shall pay to Administrative Agent immediately
upon demand and in immediately available funds), the amount equal to the
aggregate amount of the Letters of Credit then outstanding, irrespective of
whether such Letters of Credit have been drawn upon, all as set forth and in
accordance with the terms of provisions of Article III hereof. The
Administrative Agent shall promptly advise the Borrower of any such declaration
or demand but failure to do so shall not impair the effect of such declaration
or demand; and
(e) Exercise any Rights afforded under any Loan Papers, by Law, including
but not limited to the UCC, at equity, or otherwise.
9.03. Cumulative Rights. All Rights available to Administrative Agent and
Lenders under the Loan Papers shall be cumulative of and in addition to all
other Rights granted thereto at Law or in equity, whether or not amounts owing
thereunder shall be due and payable, and whether or not Administrative Agent or
any Lender shall have instituted any suit for collection or other action in
connection with the Loan Papers.
9.04. Waivers. The acceptance by Administrative Agent or any Lender at any
time and from time to time of partial payment of any amount owing under any Loan
Papers shall not be deemed to be a waiver of any Default or Event of Default
then existing. No waiver by Administrative Agent or any Lender of any Default or
Event of Default shall be deemed to be a waiver of any Default or Event of
Default other than such Default or Event of Default. No delay or omission by
Administrative Agent or any Lender in exercising any Right under the Loan Papers
shall impair such Right or be construed as a waiver thereof or an acquiescence
therein, nor shall any single or partial exercise of any such Right preclude
other or further exercise thereof, or the exercise of any other Right under the
Loan Papers or otherwise.
9.05. Performance by Administrative Agent or any Lender. Should any
covenant of any Obligor fail to be performed in accordance with the terms of the
Loan Papers, Administrative Agent may, at its option, perform or attempt to
perform such covenant on behalf of such Obligor. Notwithstanding the foregoing,
it is expressly understood that neither Administrative Agent nor any Lender
assumes, and shall not ever have, except by express written consent of
Administrative Agent or such Lender, any liability or responsibility for the
performance of any duties or covenants of any Obligor.
9.06. Expenditures. The Borrower shall reimburse Administrative Agent and
each Lender for any reasonable sums spent by it in connection with the exercise
of any Right under Section 9.05 hereof. Such sums shall bear interest at the
lesser of (a) the Base Rate (whether or not in effect), plus 2.00% per annum and
(b) the Highest Lawful Rate, from five days after the date any Lender makes
demand to the Borrower for reimbursement of such amount until the date of
repayment by the Borrower.
9.07. Control. None of the covenants or other provisions contained in this
Agreement shall, or shall be deemed to, give Administrative Agent or any Lender
any Rights to exercise control over the affairs and/or management of any
Obligor, the power of Administrative Agent and each Lender being limited to the
Rights to exercise the remedies provided in this Article; provided, however,
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that if Administrative Agent or any Lender becomes
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the owner of any partnership, stock or other equity interest in any Person,
whether through foreclosure or otherwise, it shall be entitled to exercise such
legal Rights as it may have by being an owner of such stock or other equity
interest in such Person.
ARTICLE X. THE ADMINISTRATIVE AGENT
10.01. Authorization and Action. Each Lender hereby appoints and authorizes
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers under this Agreement and the other Loan Papers as
are delegated to the Administrative Agent by the terms of the Loan Papers,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement and the other Loan Papers
(including without limitation enforcement or collection of the Notes),
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
Majority Lenders (or all Lenders, if required under Section 11.01 hereof), and
such instructions shall be binding upon all Lenders; provided, however, that
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Administrative Agent shall not be required to take any action which exposes
Administrative Agent to personal liability or which is contrary to any Loan
Papers or applicable Law. Administrative Agent agrees to give to each Lender
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement, and to distribute to each applicable Lender in like funds all amounts
delivered to Administrative Agent by the Borrower for the Ratable or individual
account of any Lender. Functions of the Administrative Agent are administerial
in nature and in no event shall the Administrative Agent have a fiduciary or
trustee relationship in respect of any Lender by reason of this Agreement or any
Loan Paper.
10.02. Administrative Agent's Reliance, Etc. Neither Administrative Agent,
nor any of its directors, officers, agents, employees, or representatives shall
be liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any other Loan Paper, except for its or their
own gross negligence or willful misconduct. Without limitation of the generality
of the foregoing, Administrative Agent (a) may treat the payee of any Note as
the holder thereof until Administrative Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
Administrative Agent; (b) may consult with legal counsel (including counsel for
the Borrower or any of its Subsidiaries), independent public accountants, and
other experts selected by it, and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants, or experts; (c) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements,
warranties, or representations made in or in connection with this Agreement or
any other Loan Papers; (d) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants, or conditions
of this Agreement or any other Loan Papers on the part of any Obligor or its
Subsidiaries or to inspect the Property (including the books and records) of any
Obligor or its Subsidiaries; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency, or
value of this Agreement, any other Loan Papers, or any other instrument or
document furnished pursuant hereto; and (f) shall incur no liability under or in
respect of this Agreement or any other
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Loan Papers by acting upon any notice, consent, certificate, or other instrument
or writing believed by it to be genuine and signed or sent by the proper party
or parties.
10.03. Bank of America, N.A. and Affiliates. With respect to its portion
of the Commitment, its Advances, the Canada Indebtedness, and any Loan Papers,
Bank of America, N.A. has the same Rights under this Agreement as any other
Lender and may exercise the same as though it were not Administrative Agent.
Bank of America, N.A. and its Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of
business with, any Obligor, any Affiliate thereof, and any Person who may do
business therewith, all as if Bank of America, N.A. were not Administrative
Agent and without any duty to account therefor to any Lender.
10.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Administrative Agent or any other
Lender, and based on the financial statements referred to in Section 5.01(j),
Article VII hereof and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Papers.
10.05. Indemnification by Lenders. Lenders shall indemnify
Administrative Agent, Pro Rata, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against Administrative Agent in any way relating to
or arising out of any Loan Papers or any action taken or omitted by
Administrative Agent thereunder, including any negligence of Administrative
Agent; provided, however, that no Lender shall be liable for any portion of such
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liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements resulting from Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, Lenders
shall reimburse Administrative Agent, Pro Rata, promptly upon demand for any
out-of-pocket expenses (including reasonable attorneys' fees) incurred by
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether through
negotiation, legal proceedings or otherwise) of, or legal and other advice in
respect of rights or responsibilities under, the Loan Papers. The indemnity
provided in this Section 10.05 shall survive the termination of this Agreement.
10.06. Successor Administrative Agent. Administrative Agent may resign
at any time by giving written notice thereof to Lenders and the Borrower, and
may be removed at any time with or without cause by the action of all Lenders
(other than Administrative Agent, if it is a Lender). Upon any such
resignation, Majority Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's giving of notice of resignation, then
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the retiring Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the Laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the Rights and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Papers, provided that if the retiring or removed
Administrative Agent is unable to appoint a successor Administrative Agent,
Administrative Agent shall, after the expiration of a sixty day period from the
date of notice, be relieved of all obligations as Administrative Agent
hereunder. Notwithstanding any Administrative Agent's resignation or removal
hereunder, the provisions of this Article shall continue to inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
ARTICLE XI. MISCELLANEOUS
11.01. Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Papers, nor consent to any departure by the
Borrower or any Obligor therefrom, shall be effective unless the same shall be
in writing and signed by the Borrower and the Administrative Agent with the
consent of the Majority Lenders, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver, or consent shall (and the
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result of action or failure to take action shall not) unless in writing and
signed by each of the Lenders and Administrative Agent, (a) increase the
Commitment (except as specifically permitted by Section 2.18 hereof), (b) reduce
any principal, interest, fees, scheduled reduction of the Commitment or other
amounts payable hereunder, or waive or result in the waiver of any Event of
Default under Section 9.01(a) hereof, (c) postpone any date fixed for any
payment of principal, interest, fees, or other amounts payable hereunder, (d)
release any Collateral or guaranties securing any Obligor's obligations
hereunder, other than (i) releases contemplated by the provisions of this
Agreement or by the other Loan Papers and (ii) releases of assets that (A) are
being sold by the Borrower in its ordinary course of business and (B) are
obsolete or immaterial to the business of the Borrower, (C) are immaterial and
were acquired by the Borrower in connection with a Permitted Acquisition but
never contemplated to be used in the operations of the Borrower, (which such
releases do not require the consent of any Lender except the Administrative
Agent), (e) change the meaning of "Revolver Specified Percentage" (except in
accordance with the terms of Section 2.18 hereof), "Term Loan A Specified
Percentage", "Term Loan B Specified Percentage" or "Total Specified
Percentage" (except in accordance with the terms of Section 2.18 hereof), or
the number of Lenders required to take any action hereunder, (f) change the
definitions of "Commitment", "Unavailable Commitment", "First Maturity Date",
"Final Maturity Date", "Majority Lenders", "Letter of Credit Commitment" or
"Canada Indebtedness Amount", (g) or amend any provision of Section 2.18 hereof
which would affect any of the items listed in Section 11.01(a) through (f)
above, or (h) amend this Section 11.01. No amendment, waiver, or consent shall
affect the Rights or duties of Administrative Agent under any Loan Papers,
unless it is in writing and signed by Administrative Agent in addition to the
requisite number of Lenders.
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11.02. Notices.
(a) Manner of Delivery. All notices communications and other materials to
be given or delivered under the Loan Papers shall, except in those cases where
giving notice by telephone is expressly permitted, be given or delivered in
writing. All written notices, communications and materials shall be sent by
registered or certified mail, postage prepaid, return receipt requested, by
telecopier, or delivered by hand. In the event of a discrepancy between any
telephonic notice and any written confirmation thereof, such written
confirmation shall be deemed the effective notice except to the extent
Administrative Agent, any Lender or the Borrower has acted in reliance on such
telephonic notice.
(b) Addresses. All notices, communications and materials to be given or
delivered pursuant to this Agreement shall be given or delivered at the
following respective addresses and telecopier and telephone numbers and to the
attention of the following individuals or departments:
(i) If to the Borrower:
Pinnacle Towers Inc.
0000 Xxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxx Xxx
(ii) If to Administrative Agent:
Bank of America, N.A.
Bank of America Plaza
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
Principal
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With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C.
3400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx Xxxxxxx
(iii) If to any Lender, to its address shown on Schedule 11.02 hereto or
--------------
on any Assignment and Acceptance.
or at such other address or, telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice to the other
specifically captioned "Notice of Change of Address".
(d) Effectiveness. Each notice, communication and any material to be given
or delivered to any party pursuant to this Agreement shall be effective or
deemed delivered or furnished (i) if sent by mail, on the fifth day after such
notice, communication or material is deposited in the mail, addressed as above
provided, (ii) if sent by telecopier, when such notice, communication or
material is transmitted to the appropriate number determined as above provided
in this Section 11.02 and the appropriate receipt is received or otherwise
acknowledged, (iii) if sent by hand delivery or overnight courier, when left at
the address of the addressee addressed as above provided, and (iv) if given by
telephone, when communicated to the individual or any member of the department
specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered except that notices of
a change of address, telecopier or telephone number or individual or department
to whose attention notices, communications and materials are to be given or
delivered shall not be effective until received; provided, however, that notices
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to Administrative Agent pursuant to Article II shall be effective when received.
The Borrower agrees that Administrative Agent shall have no duty or obligation
to verify or otherwise confirm telephonic notices given pursuant to Article II,
and agrees to indemnify and hold harmless Administrative Agent and Lenders for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, and expenses resulting, directly or indirectly,
from acting upon any such notice.
11.03. Parties in Interest and Register. All covenants and agreements
contained in this Agreement and all other Loan Papers shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto. Each
Lender may from time to time assign or transfer its interests hereunder pursuant
to Section 11.04 hereof. The Borrower may not assign or transfer its Rights or
obligations hereunder without the prior written consent of Administrative Agent.
The Borrower shall maintain a register (the "Register") indicating (a) each
Person entitled to receive principal and interest with respect to the all or any
portion of the Loans and (b) each transfer of all or any portion of the Loans.
The Borrower shall have no liability or obligation resulting from errors or
mistakes in such Register to the extent that
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the Borrower has not received notice of assignment or transfer in accordance
with the terms of Section 11.04 hereof.
11.04. Assignments and Participations.
(a) Each Lender (an "Assignor") may assign its Rights and obligations as a
Lender under the Loan Papers to one or more Eligible Assignees pursuant to an
Assignment and Acceptance, so long as (i) each assignment shall be of a
constant, and not a varying percentage of all Rights and obligations thereunder,
(ii) each Assignor shall obtain in each case the prior written consent of
Administrative Agent and the Borrower, in each case such consent not to be
unreasonably withheld or delayed, provided that, in the event there exists a
Default or Event of Default, any such consent of the Borrower shall not be
required, (iii) each Assignor shall in each case pay a $3,500 processing fee to
Administrative Agent and (iv) no such assignment is for an amount less than
$3,000,000 (and, if such assignment is a partial assignment, no Lender shall
hold less than $3,000,000 immediately after giving effect to any assignment
unless it is assigning such Lender's entire interest), in each case, unless
otherwise consented to by the Administrative Agent. Assignments and other
transfers (except participations) with respect to each Lender's participation in
a given Letter of Credit may only be made with the prior written consent of the
Administrative Agent. Within five Business Days after Administrative Agent and
the Borrower receive notice of any such assignment, the Borrower shall (A)
record such transfers and assignments in the Register and (B) execute and
deliver to Administrative Agent, in exchange for the Notes issued to Assignor,
new Notes to the order of such Assignor and its assignee in amounts equal to
their respective Revolver Specified Percentages of the Commitment, the
respective Term Loan A Specified Percentages of $125,000,000 and their
respective Term Loan B Specified Percentages of $110,000,000. Such new Notes
shall be dated the effective date of the assignment. It is specifically
acknowledged and agreed that on and after the effective date of each assignment,
the assignee shall be a party hereto and shall have the Rights and obligations
of a Lender under the Loan Papers.
(b) Each Lender may sell participations to one or more Persons in all or
any of its Rights and obligations under the Loan Papers; provided, however, that
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(i) such Lender's obligations under the Loan Papers shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
its Notes for all purposes of the Loan Papers, (iv) the participant shall be
granted the Right to vote on or consent to only those matters described in
Sections 11.01(a), (b), (c) and (d) hereof and (v) Obligor, Administrative
Agent, and other Lenders shall continue to deal solely and directly with such
Lender in connection with its Rights and obligations under the Loan Papers.
(c) Any Lender may, in connection with any assignment or participation, or
proposed assignment or participation, disclose to the assignee or participant,
or proposed assignee or participant, any information relating to any Obligor
furnished to such Lender by or on behalf of any Obligor.
(d) Notwithstanding any other provision set forth in this Agreement, (i)
any Lender may at any time create a security interest in all or any portion of
its Rights under this Agreement
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(including, without limitation, the Advances owing to it and the Notes held by
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System and any Lender that is a fund
that invests in bank loans may, without the consent of the Administrative Agent
or the Borrower, pledge its Note or any other instrument evidencing its rights
as a Lender under this Agreement to any holder of obligations owed, or
securities issued, by such fund as security for such obligations or securities,
or to any trustee for, or any other representative of, such holders; provided
that any foreclosure or similar action by such trustee shall be subject to the
provisions of this Section concerning assignments, (ii) no participant of any
Lender may further assign or participate any of its interest in the Loan Papers
to any Person (except as may be required by Law or a Tribunal having authority
over such participant), and (iii) no Lender (other than Bank of America, N.A.)
may assign any of its interest in the Loan Papers to any Person (except as may
be required by Law or a Tribunal having authority over Bank of America, N.A.)
except as specifically provided in Section 11.04 hereof.
11.05. Sharing of Payments. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any Right of set-off, or
otherwise) on account of its Advances in excess of its Pro Rata share of
payments made by the Borrower, such Lender shall forthwith purchase
participations in Advances made by the other Lenders as shall be necessary to
share the excess payment Pro Rata with each of them; provided, however, that if
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any of such excess payment is thereafter recovered from the purchasing Lender,
its purchase from each Lender shall be rescinded and each Lender shall repay the
purchase price to the extent of such recovery together with a Pro Rata share of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section 11.05
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.
11.06. Right of Set-off. Upon the occurrence and during the continuance of
any Event of Default, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by Law, to set-off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any and all of the obligations of
the Borrower now or hereafter existing under this Agreement and the other Loan
Papers, whether or not Administrative Agent or any Lender shall have made any
demand under this Agreement or the other Loan Papers, and even if such
obligations are unmatured. Each Lender shall promptly notify the Borrower after
any such set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The Rights of
each Lender under this Section 11.06 are in addition to other Rights (including,
without limitation, other Rights of set-off) which such Lender may have.
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11.07. Costs, Expenses, and Taxes.
(a) The Borrower agrees to pay on demand (i) all costs and expenses of
Administrative Agent and BAS in connection with the preparation and negotiation
of all Loan Papers, including without limitation the reasonable fees and
out-of-pocket expenses of Special Counsel, (ii) all costs and expenses of
Administrative Agent and BAS in connection with any syndication of the Loans,
including without limitation the costs of all amendments to this Agreement and
the Loan Papers and the reasonable fees and out-of-pocket expenses of Special
Counsel, (iii) all costs and expenses (including reasonable attorneys' fees and
expenses) of Administrative Agent in connection with any interpretation, grant
and perfection of any Lien, modification, amendment, waiver, release of any Loan
Papers, restructuring or work-out and (iv) all costs and expenses (including
reasonable attorneys' fees and expenses) of Administrative Agent and each Lender
in connection with any collection of any portion of the Obligations or the
enforcement of any Loan Papers during the continuance of an Event of Default.
(b) In addition, the Borrower shall pay any and all stamp, debt, and other
Taxes ("Other Taxes") payable or determined to be payable in connection with any
payment hereunder (other than Taxes on the overall net income of Administrative
Agent or any Lender or franchise Taxes or Taxes on capital or capital receipts
of Administrative Agent or any Lender), or the execution, delivery, or
recordation of any Loan Papers, and agrees to save Administrative Agent and each
Lender harmless from and against any and all liabilities with respect to, or
resulting from any delay in paying or omission to pay any Taxes in accordance
with this Section 11.07, including any penalty, interest, and expenses relating
thereto. All payments by the Borrower or any Subsidiary of the Borrower under
any Loan Papers shall be made free and clear of and without deduction for any
present or future Taxes (other than Taxes on the overall net income of
Administrative Agent or any Lender of any nature now or hereafter existing,
levied, or withheld, or franchise Taxes or Taxes on capital or capital receipts
of Administrative Agent or any Lender), including all interest, penalties, or
similar liabilities relating thereto. If the Borrower shall be required by Law
to deduct or to withhold any Taxes from or in respect of any amount payable
hereunder (i) the amount so payable shall be increased to the extent necessary
so that, after making all required deductions and withholdings (including Taxes
on amounts payable to Administrative Agent or any Lender pursuant to this
sentence), Administrative Agent or any Lender receives an amount equal to the
sum it would have received had no such deductions or withholdings been made,
(ii) the Borrower shall make such deductions or withholdings, and (iii) the
Borrower shall pay the full amount deducted or withheld to the relevant taxing
authority in accordance with applicable Law.
(c) The Borrower will indemnify each Lender and the Administrative Agent
for the full amount of Taxes and Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 11.07 but excluding any Taxes or Other Taxes on the overall net income
of the Administrative Agent or any Lender) paid by such Lender or the
Administrative Agent (as the case may be) and all liabilities (including
penalties, additions to tax, interest and reasonable expenses) arising therefrom
or with respect thereto whether or not such Taxes or Other Taxes were correctly
or legally asserted, other than penalties, additions to tax, interest and
expenses arising as a result of gross negligence on the part of such Lender or
the Administrative Agent, provided, however, that the Borrower shall have no
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obligation to indemnify such Lender or the Administrative Agent (i) unless
notice has been given by such Lender or the Administrative Agent, as applicable,
in a time sufficient to afford the Borrower, in good faith, a reasonable
opportunity to contest such payment by such Lender or the Administrative Agent,
provided such opportunity to contest exists under Applicable Law, and (ii) until
such Lender or the Administrative Agent shall have delivered to the Borrower a
certificate setting forth in reasonable detail the basis of the Borrower's
obligation to indemnify such Lender or the Administrative Agent pursuant to this
Section 11.07. This indemnification shall be made within 30 days from the date
such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Administrative Agent the original or a certified copy of a
receipt evidencing payment thereof. If no Taxes are payable in respect of any
payment hereunder, the Borrower will furnish to the Administrative Agent a
certificate from each appropriate taxing authority, or an opinion of counsel
acceptable to the Administrative Agent, in either case stating that such payment
is exempt from or not subject to Taxes, provided, however, that such certificate
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or opinion need only be given if: (i) the Borrower makes any payment from any
account located outside the United States, or (ii) the payment is made by a
payor that is not a United States Person. For purposes of this Section 11.07
the terms "United States" and "United States Person" shall have the meanings set
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forth in Section 7701 of the Code.
(e) Each Lender which is not a United States Person hereby agrees that:
(i) it shall, no later than the Closing Date (or, in the case of a
Lender which becomes a party hereto pursuant to Section 11.04 after the
Closing Date, the date upon which such Lender becomes a party hereto)
deliver to the Borrower through the Administrative Agent, with a copy to the
Administrative Agent:
(A) for any banking institution, if any lending office is located in
the United States of America, two (2) accurate and complete signed
originals of Internal Revenue Service Form 4224 or any successor
thereto ("Form 4224"),
---------
(B) for any banking institution, if any lending office is located
outside the United States of America, two (2) accurate and complete
signed originals of Internal Revenue Service Form 1001 or any
successor thereto ("Form 1001").
---------
(C) for any non-bank, two (2) accurate and complete signed originals of
Internal Revenue Service Form W-8 or any successor thereto
("Form W-8").
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in each case indicating that such Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the
account of such lending office or lending offices under this Agreement free
from withholding of United States Federal income tax;
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(ii) if at any time such Lender changes its lending office or lending
offices or selects an additional lending office it shall, at the same time
or reasonably promptly thereafter but only to the extent the forms
previously delivered by it hereunder are no longer effective, deliver to the
Borrower through the Administrative Agent, with a copy to the Administrative
Agent, in replacement for the forms previously delivered by it hereunder:
(A) if such changed or additional lending office is located in the
United States of America, two (2) accurate and complete signed
originals of Form 4224; or
(B) otherwise, two (2) accurate and complete signed originals of Form
1001 or W-8, as applicable,
in each case indicating that such Lender is on the date of delivery thereof
entitled to receive payments of principal, interest and fees for the account
of such changed or additional lending office under this Agreement free from
withholding of United States Federal income tax;
(iii) it shall, before or promptly after the occurrence of any event
(including the passing of time but excluding any event mentioned in clause
(ii) above) requiring a change in the most recent Form 4224, Form 1001 or
Form W-8 previously delivered by such Lender and if the delivery of the same
be lawful, deliver to the Borrower through the Administrative Agent with a
copy to the Administrative Agent, two (2) accurate and complete original
signed copies of Form 4224, Form 1001 or Form W-8 in replacement for the
forms previously delivered by such Lender; and
(iv) it shall, promptly upon the request of the Borrower to that
effect, deliver to the Borrower such other forms or similar documentation as
may be required from time to time by any applicable law, treaty, rule or
regulation in order to establish such Lender's tax status for withholding
purposes.
(f) Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 11.07 shall survive the payment in full of principal and interest
hereunder.
(g) Any Lender claiming any additional amounts payable pursuant to this
Section 11.07 shall use its reasonable best efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its lending office, if the making of such a change would avoid
the need for, or reduce the amount of, any such additional amounts which may
thereafter accrue and would not, in the sole judgment of such Lender, be
otherwise disadvantageous to such Lender.
(h) Each Lender (and the Administrative Agent with respect to payments to
the Administrative Agent for its own account) agrees that (i) it will take all
reasonable actions by all usual means to maintain all exemptions, if any,
available to it from United States withholding
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taxes (whether available by treaty, existing administrative waiver, by virtue of
the location of any Lender's lending office) and (ii) otherwise cooperate with
the Borrower to minimize amounts payable by the Borrower under this Section
11.07; provided, however, the Lenders and the Administrative Agent shall not be
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obligated by reason of this Section 11.07(h) to contest the payment of any Taxes
or Other Taxes or to disclose any information regarding its tax affairs or tax
computations or reorder its tax or other affairs or tax or other planning.
11.08. Rate Provision. It is not the intention of any party to any Loan
Papers to make an agreement violative of the Laws of any applicable jurisdiction
relating to usury. In no event shall any Obligor or any other Person be
obligated to pay any amount in excess of the Maximum Amount. If Administrative
Agent or any Lender ever receives, collects or applies, as interest, any such
excess, such amount which would be excessive interest shall be deemed a partial
repayment of principal and treated hereunder as such; and if principal is paid
in full, any remaining excess shall be paid to the Borrower or the other Person
entitled thereto. In determining whether or not the interest paid or payable,
under any specific contingency, exceeds the Maximum Amount, each Obligor,
Administrative Agent and each Lender shall, to the maximum extent permitted
under Applicable Laws, (a) characterize any nonprincipal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments and
the effect thereof, and (c) amortize, prorate, allocate and spread in equal
parts, the total amount of interest throughout the entire contemplated term of
the Obligations so that the interest rate is uniform throughout the entire term
of the Obligations; provided that if the Obligations are paid and performed in
--------
full prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds the Maximum Amount,
Administrative Agent or Lenders, as appropriate, shall refund to the Borrower
the amount of such excess or credit the amount of such excess against the total
principal amount owing, and, in such event, neither Administrative Agent nor any
Lender shall be subject to any penalties provided by any Laws for contracting
for, charging or receiving interest in excess of the Maximum Amount. This
Section 11.08 shall control every other provision of all agreements among the
parties to the Loan Papers pertaining to the transactions contemplated by or
contained in the Loan Papers.
11.09. Severability. If any provision of any Loan Papers is held to be
illegal, invalid, or unenforceable under present or future Laws during the term
thereof, such provision shall be fully severable, the appropriate Loan Paper
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part thereof, and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance therefrom.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision there
shall be added automatically as a part of such Loan Paper a legal, valid, and
enforceable provision as similar in terms to the illegal, invalid, or
unenforceable provision as may be possible.
11.10. Exceptions to Covenants. No Obligor shall be deemed to be permitted
to take any action or to fail to take any action that is permitted as an
exception to any covenant in any Loan Papers, or that is within the permissible
limits of any covenant, if such action or omission would result in a violation
of any other covenant in any Loan Papers.
101
11.11. Counterparts. This Agreement and the other Loan Papers may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought.
11.12. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND ALL OTHER LOAN PAPERS SHALL BE DEEMED TO BE CONTRACTS
MADE IN DALLAS, TEXAS, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS) AND
THE UNITED STATES OF AMERICA. WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE
BORROWER AGREES THAT THE STATE AND FEDERAL COURTS OF TEXAS LOCATED IN DALLAS,
TEXAS, WILL HAVE JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH
OTHER PARTY TO THIS AGREEMENT HEREBY WAIVES ANY RIGHT THAT IT MAY HAVE TO A
TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT, EQUITY, OR
OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER LOAN PAPERS,
OR ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A
JUDGE SITTING WITHOUT A JURY.
(b) THE BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY LEGAL PROCESS UPON
IT. THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWER AT ITS
ADDRESS DESIGNATED FOR NOTICE UNDER THIS AGREEMENT AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED FIVE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL.
NOTHING IN THIS SECTION 11.12 SHALL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR
ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
11.13. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS REPRESENT
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
11.14. Amendment, Restatement, Extension, Renewal and Increase. This
Agreement is a renewal and amendment and restatement of the Original Credit
Agreement, and, as such, except for the "Obligation" as
102
defined in the Original Credit Agreement (which shall survive, be renewed and
restated by the terms of this Agreement), all other terms and provisions
supersede in their entirety the Original Credit Agreement. All subordination
agreements, security agreements, pledge agreements, mortgages, deeds of trust
and other documents and instruments granting any security interest or assigning
any interest in any assets of the Borrower or any Subsidiary to secure the
Obligation executed and delivered in connection with this Agreement that restate
any previously granted interest shall supersede any subordination agreements,
security agreements, pledge agreements, mortgages, deeds of trust and other
documents and instruments granting any security interest or assigning any
interest in any assets of the Borrower or any Subsidiary that were executed and
delivered in connection with the Original Credit Agreement (the "Original
Security Documents"), except for the Liens created under the Original Security
Documents which shall remain valid, binding and enforceable Liens against the
Borrower, the Subsidiaries and each of the other Persons granting any such
Liens. All other Original Security Documents shall continue to secure the
Obligations as herein defined, and shall be in full force and effect.
========================================================
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
========================================================
103
IN WITNESS WHEREOF, this Fifth Amended and Restated Credit Agreement is
executed as of the date first set forth above.
THE BORROWER:
PINNACLE TOWERS INC.
_____________________________________
By: _________________________________
Its: ________________________________
104
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent
________________________________________
By: Xxxxxxx X. Xxxxx
Its: Principal
LENDERS:
Term Loan A
Specified Percentage: 7.0000000% BANK OF AMERICA, N.A., individually as
a Lender
Term Loan B
Specified Percentage: 21.8181818%
________________________________________
By: Xxxxxxx X. Xxxxx
Revolver Its: Principal
Specified Percentage: 3.2490079%
Total
Specified Percentage: 11.0000000%
Address:
Bank of America Plaza
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn.: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
105
Term Loan A
Specified Percentage: 7.0000000% BANKBOSTON, N.A.
Term Loan B
Specified Percentage: 7.2727273%
__________________________________
By: ______________________________
Revolver Its:______________________________
Specified Percentage: 8.1597222%
Total
Specified Percentage: 7.6595745%
Address:
000 Xxxxxxx Xxxxxx, XX 01-08-08
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
106
Term Loan A
Specified Percentage: 7.0000000% BANKERS TRUST COMPANY
Term Loan B
Specified Percentage: 7.2727273%
_______________________________________
By: ___________________________________
Revolver Its: __________________________________
Specified Percentage: 8.1597222%
Total
Specified Percentage: 7.6595745%
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
107
Term Loan A
Specified Percentage: 6.9444444% SOCIETE GENERALE
Term Loan B
Specified Percentage: 7.2727273%
------------------------------
By: --------------------------
Revolver Its:--------------------------
Specified Percentage: 7.2854663%
Total
Specified Percentage: 7.0212766%
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx Xxxxx-Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
108
Term Loan A
Specified Percentage: 7.7777778% UNION BANK OF CALIFORNIA, N.A.
Term Loan B
Specified Percentage: 4.5454545%
----------------------------------
By: ------------------------------
Revolver Its:------------------------------
Specified Percentage: 8.1597222%
Total
Specified Percentage: 7.0212766%
Address:
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
109
Term Loan A
Specified Percentage: 7.7777778% KEY CORPORATE CAPITAL INC.
Term Loan B
Specified Percentage: 4.5454545%
--------------------------------
By: ----------------------------
Revolver Its:----------------------------
Specified Percentage: 8.1597222%
Total
Specified Percentage: 7.0212766%
Address:
000 Xxxxxx Xxxxxx
Mail Code: OH-01-27-0602
Xxxxxxxxx, Xxxx 00000
Attn.: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
110
Term Loan A
Specified Percentage: 6.0000000% COBANK, ACB
Term Loan B
Specified Percentage: 0.0000000%
----------------------------
By: ------------------------
Revolver Its:------------------------
Specified Percentage: 7.2854663%
Total
Specified Percentage: 5.3191489%
Address:
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
111
Term Loan A
Specified Percentage: 6.9444444% CREDIT LYONNAIS NEW YORK BRANCH
Term Loan B
Specified Percentage: 0.0000000%
--------------------------------------
By: ----------------------------------
Revolver Its:----------------------------------
Specified Percentage: 7.2854663%
Total
Specified Percentage: 5.3191489%
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx XxXxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
112
Term Loan A
Specified Percentage: 6.0000000% THE BANK OF NOVA SCOTIA
Term Loan B
Specified Percentage: 0.0000000%
------------------------------
By: --------------------------
Revolver Its:--------------------------
Specified Percentage: 7.2854663%
Total
Specified Percentage: 5.3191489%
Address:
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
113
Term Loan A
Specified Percentage: 5.5555556% DRESDNER BANK AG NEW YORK & GRAND
CAYMAN BRANCHES
Term Loan B
Specified Percentage: 0.0000000%
--------------------------------------
By: ----------------------------------
Revolver Its:----------------------------------
Specified Percentage: 5.8283730%
Total
Specified Percentage: 4.2553191%
Address:
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
114
Term Loan A
Specified Percentage: 4.1666667% MERCANTILE BANK NATIONAL
ASSOCIATION
Term Loan B
Specified Percentage: 0.0000000%
---------------------------------------
By: -----------------------------------
Revolver Its:-----------------------------------
Specified Percentage: 4.3712799%
Total
Specified Percentage: 3.1914894%
Address:
One Merchantile Xxxxxx
0xx & Xxxxxxxxxx, 00-0
Xx. Xxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
115
Term Loan A
Specified Percentage: 4.1666667% U.S. BANK NATIONAL ASSOCIATION
Term Loan B
Specified Percentage: 0.0000000%
--------------------------------------
By: ----------------------------------
Revolver Its:----------------------------------
Specified Percentage: 4.3712798%
Total
Specified Percentage: 3.1914894%
Address:
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
116
Term Loan A
Specified Percentage: 4.1666667% CREDIT LOCAL DE FRANCE - NEW YORK
AGENCY
Term Loan B
Specified Percentage: 0.0000000%
--------------------------------------
By: ----------------------------------
Revolver Its:----------------------------------
Specified Percentage: 4.3712798%
Total
Specified Percentage: 3.1914894%
Address:
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
117
Term Loan A
Specified Percentage: 4.1666667% IBM CREDIT CORPORATION
Term Loan B
Specified Percentage: 0.0000000%
--------------------------------------
By: ----------------------------------
Revolver Its:----------------------------------
Specified Percentage: 4.3712798%
Total
Specified Percentage: 3.1914894%
Address:
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
Attn.: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
118
Term Loan A
Specified Percentage: 4.1666667% THE CIT GROUP/EQUIPMENT FINANCING,
INC.
Term Loan B
Specified Percentage: 0.0000000%
--------------------------------------
By: ----------------------------------
Revolver Its:----------------------------------
Specified Percentage: 4.3712798%
Total
Specified Percentage: 3.1914894%
Address:
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn.: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
119
Term Loan A
Specified Percentage: 2.7777778% ALLFIRST BANK
Term Loan B
Specified Percentage: 0.0000000%
--------------------------------------
By: ----------------------------------
Revolver Its:----------------------------------
Specified Percentage: 2.9141865%
Total
Specified Percentage: 2.1276596%
Address:
00 X. Xxxxxxx Xxxxxx
18th Floor, M/C 101-511
Xxxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
120
Term Loan A
Specified Percentage: 2.7777778% CITY NATIONAL BANK
Term Loan B
Specified Percentage: 0.0000000%
--------------------------------------
By: ----------------------------------
Revolver Its:----------------------------------
Specified Percentage: 2.9141865%
Total
Specified Percentage: 2.1276596%
Address:
000 Xxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn.: Xxxxxxx X. Drum
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
121
Term Loan A
Specified Percentage: 1.3888889% XXXXXXX XXXXX BANK, FSB
Term Loan B
Specified Percentage: 0.0000000%
---------------------------------------
By: -----------------------------------
Revolver Its:-----------------------------------
Specified Percentage: 1.4570933%
Total
Specified Percentage: 1.0638298%
Address:
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Xxxx X. Xxxxxxxxx
Telephone: (000) 000-0000 x0000
Telecopy: (000) 000-0000
122
Term Loan B
Specified Percentage: 13.6363636% XXXXXX FINANCIAL, INC.
Total
Specified Percentage: 3.1914894%
--------------------------------------
By: ----------------------------------
Its:----------------------------------
Address:
000 X. Xxxxxx Xxxxxx
Xxxxxxx,Xxxxxxxx 00000
Attn.: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
123
Term Loan B
Specified Percentage: 5.4545455% PILGRIM PRIME RATE TRUST
By: Pilgrim Investment, Inc., as its
investment manager
Total
Specified Percentage: 1.2765957%
--------------------------------------
By: ----------------------------------
Its:----------------------------------
Address:
Two Renaissance Tower
00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn.: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
124
Term Loan B
Specified Percentage: 9.0909091% PPM SPYGLASS FUNDING TRUST
Total
Specified Percentage: 2.1276596%
---------------------------------------
By: -----------------------------------
Its:-----------------------------------
Address:
c/o Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
125
Term Loan B
Specified Percentage: 11.8181818% XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME
TRUST
Total
Specified Percentage: 2.7659574%
---------------------------------------
By: -----------------------------------
Its:-----------------------------------
Address:
c/o Morgan Xxxxxxx Xxxx Xxxxxx Advisors Inc.
Two World Trade Center, 72nd Floor
New York, New York 10048
Attn.: Xxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
126
Term Loan B
Specified Percentage: 2.7272727% KZH ING-1 LLC
Total
Specified Percentage: 0.6382979%
------------------------------------
By: --------------------------------
Its:--------------------------------
Address:
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
127
Term Loan B
Specified Percentage: 4.5454545% KZH ING-2 LLC
Total
Specified Percentage: 1.0638298%
--------------------------------------
By:-----------------------------------
Its:----------------------------------
Address:
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
128
