EXHIBIT 10.1
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EXECUTION COPY
THIRD CONSENT AND AMENDMENT TO FUNDING AGREEMENT
Third Consent and Amendment (this "CONSENT AND AMENDMENT"), dated as of
June 25, 2002, to that certain Funding Agreement dated as of May 15, 2002 and
amended as of June 12, 2002 and June 19, 2002 among SpectraSite Holdings, Inc.
and SpectraSite Intermediate Holdings, LLC (together, the "CO-ISSUERS") and the
several purchasers named in Schedule I thereto (such agreement being referred to
herein as the "FUNDING AGREEMENT"). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Funding
Agreement.
WHEREAS, pursuant to Section 1.01(c) of the Funding Agreement, Parent
may not make certain changes to the terms of any Offer without the prior written
consent of the Required Purchasers; and
WHEREAS, pursuant to Section 8.05 of the Funding Agreement, the
Co-Issuers and the Required Holders desire to amend the Funding Agreement as
more particularly set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree, as
follows:
1. Pursuant to Section 1.01(c) of the Funding Agreement, the
Required Purchasers hereby consent to the extension of the Expiration Date of
each Cash Offer to 5:00 P.M., New York City Time, on July 12, 2002.
2. Each party to this Consent and Amendment hereby represents and
warrants to the other parties hereto that (a) the execution, delivery and
performance of this Consent and Amendment by such party will not violate any
provision of applicable law, any order of any court or other agency of
government, or any provision of any indenture, agreement or other instrument to
which such party or any of its properties or assets is bound, or conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, except for such
violations, conflicts or breaches which, individually or in the aggregate, would
not have a material adverse effect on such party and its subsidiaries, taken as
a whole, and (b) this Consent and Amendment has been duly executed and delivered
by such party and when this Consent and Amendment is executed by the other
parties hereto, the Funding Agreement as amended by this Consent and Amendment,
will constitute the legal, valid and binding obligation of such party,
enforceable in accordance with its terms.
3. This Consent and Amendment shall not constitute an amendment
or modification of any other provision of the Funding Agreement not expressly
referred to herein. Except as expressly amended or modified herein, the
provisions of the Funding Agreement are and shall remain in full force and
effect. Each reference to "hereof", "hereunder", "herein" and "hereby" and each
other similar reference and each reference to "this Agreement" and each other
similar reference contained in the Funding Agreement shall, after this Consent
and Amendment becomes effective, refer to the Funding Agreement as amended
hereby.
4. This Consent and Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all such
counterparts shall be deemed to be one and the same instrument. Each party
hereto confirms that any facsimile copy of such party's executed counterpart of
this Consent and Amendment (or its signature page thereof) shall be deemed to be
an executed original thereof.
5. THIS CONSENT AND AMENDMENT SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
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CONSENT AND AMENDMENT TO FUNDING AGREEMENT
SPECTRASITE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President and CEO
SPECTRASITE INTERMEDIATE HOLDINGS, LLC
By SpectraSite Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President and CEO
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P.
By WCAS VIII Associates, L.L.C., Its
General Partner
By: /s/ Xxxxxxxx Rather
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Name: Xxxxxxxx Rather
Title: Managing Member
WELSH, CARSON, XXXXXXXX & XXXXX IX, L.P.
By WCAS IX Associates, L.L.C., Its
General Partner
By: /s/ Xxxxxxxx Rather
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Name: Xxxxxxxx Rather
Title: Managing Member
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