EXHIBIT 10.1
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EXECUTION COPY
CONSENT AND AMENDMENT TO FUNDING AGREEMENT
Consent and Amendment, dated as of June 12, 2002, to that certain
Funding Agreement dated as of May 15, 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 (i) extension of Expiration Date of
each Offer to 5:00 P.M., New York City Time, on June 19, 2002 and (ii) amendment
of the definition of "Minimum Tender Condition" in the Cash Offers to Purchase
to reduce the minimum aggregate Purchase Price for all of the Notes tendered in
the Cash Offers from $300 million to $150 million.
2. Section 6.01(f) of the Funding Agreement is hereby amended and
restated in its entirety as follows:
"THE CASH OFFERS. (1) the General Conditions (as defined in
the Cash Offers to Purchase) shall have been satisfied or,
subject to Section 1.01(c) and 1.01(e), waived with respect to
the Designated Cash Offers, and (2) the Co-Issuers
concurrently shall have accepted for payment High Yield Debt
validly tendered and not withdrawn prior to the expiration of
the Designated Cash Offer(s), pursuant to the terms and
conditions set forth in the applicable Cash Offer(s) to
Purchase which, except to the extent provided in Section
1.01(c) and 1.01(e), shall not have been amended, modified,
waived or extended without the prior written consent of the
Required Purchasers. As used herein, "DESIGNATED CASH OFFERS"
means those of the Cash Offers with respect to which the
depositary shall have received valid and unwithdrawn tenders
of High Yield Debt that result in the
purchase of High Yield Debt for an aggregate Purchase Price
(as defined in the Cash Offers to Purchase) for all of the
High Yield Debt so tendered of at least $300 million."
3. Section 6.02(j) of the Funding Agreement is hereby amended and
restated in its entirety as follows:
"THE CASH OFFERS. (1) the Minimum Tender Condition (as defined
in the Cash Offers to Purchase) shall have been satisfied or,
subject to Section 1.01(c) and 1.01(e), waived and (2) the
General Conditions shall have been satisfied or, subject to
Section 1.01(c) and 1.01(e), waived with respect to those of
the Cash Offers with respect to which the depositary shall
have received valid and unwithdrawn tenders of High Yield Debt
in an aggregate amount sufficient to cause the Minimum Tender
Condition to have been satisfied."
4. 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.
5. 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.
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6. 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.
7. 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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