EXHIBIT 10.21
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$250,000,000
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
PINNACLE TOWERS INC.
AND
NATIONSBANK, N.A.
AS ADMINISTRATIVE LENDER
AND
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
AS SYNDICATION AGENT
AND
BANKBOSTON, N.A.
SOCIETE GENERALE, NEW YORK BRANCH
BANK OF AMERICA
UNION BANK OF CALIFORNIA, N.A.
AS LENDERS
DATED AS MAY 29, 1998
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$250,000,000
PINNACLE TOWERS INC.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS
1.01. Definitions...................................................... 2
1.02. Accounting and Other Terms....................................... 25
ARTICLE II. AMOUNTS AND TERMS OF ADVANCES
2.01. The Advances..................................................... 25
2.02. Making Advances.................................................. 25
2.03. Evidence of Debt for Borrowed Money.............................. 27
2.04. Optional Prepayments............................................. 27
2.05. Mandatory Prepayments............................................ 28
2.06. Repayment........................................................ 29
2.07. Interest......................................................... 29
2.08. Default Interest................................................. 30
2.09. Continuation and Conversion Elections............................ 30
2.10. Fees............................................................. 31
2.11. Reduction of Available Commitment................................ 32
2.12. Funding Losses................................................... 34
2.13. Computations and Manner of Payments.............................. 34
2.14. Yield Protection; Changed Circumstances.......................... 35
2.15. Use of Proceeds.................................................. 37
2.16. Collateral and Collateral Call................................... 37
2.17. Replacement of a Lender.......................................... 38
2.18. Conditions Precedent to the Increase of the Available Commitment. 39
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit.................................... 41
3.02. Letters of Credit Fee............................................ 42
3.03. Reimbursement Obligations........................................ 42
3.04. Lenders' Obligations............................................. 44
3.05. Administrative Lender's Obligations.............................. 44
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to Closing and the Initial Advance.......... 45
4.02. Conditions Precedent to All Advances and Letters of Credit....... 47
4.03. Conditions Precedent to Advances for Permitted Acquisitions...... 47
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties................................... 48
5.02. Survival of Representations and Warranties....................... 56
$250,000,000
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PINNACLE TOWERS INC.
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT is dated as of May 29,
1998, among Pinnacle Towers Inc., a Delaware corporation (the "Borrower"), the
Lenders (as defined below), NationsBank, N.A., as a Lender and Administrative
Lender (the "Administrative Lender"), and Xxxxxxx Sachs Credit Partners L.P., as
Syndication Agent.
BACKGROUND.
WHEREAS, Borrower entered into that certain Second Amended and Restated
Credit Agreement with Administrative Lender and Lenders, dated as of February
26, 1998 (the "Original Credit Agreement") which provided for one revolver/term
loan in the initial amount of $200,000,000 (which could be increased to
$250,000,000), to add certain lenders as parties thereto and to make certain
other agreed to changes to the existing credit facility among the parties
thereto.
WHEREAS, Borrower and Administrative Lender have agreed to restructure,
extend, renew and restate such indebtedness under the Original Credit Agreement
as set forth herein to provide for one reducing revolver facility in the initial
amount of $150,000,000, which may under certain circumstances (but the Lenders
are under no commitment to) increase to $250,000,000 and to make certain other
agreed to changes to the existing credit facility among the parties thereto.
AGREEMENT.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
parties hereto agree as follows:
All obligations under the Original Credit Agreement, as modified herein,
shall after the Closing Date, be evidenced by the Notes, this Agreement, and the
Loan Papers, and shall be secured by (except as expressly provided herein or in
any other Loan Paper), among other things, the original collateral as granted
Borrower pursuant to the Loan Papers executed and delivered pursuant to the
Original Credit Agreement and the preceding credit documentation, as amended
from time to time.
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):
"ABRY" means ABRY Broadcast Partners II, L.P., a Delaware limited
partnership.
"Advance" means an advance made by a Lender to the Borrower pursuant to
Section 2.01 hereof, which such Advance may 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 Lender" means NationsBank, N.A. in its capacity as
Administrative Lender hereunder, or any successor Administrative Lender
appointed pursuant to Section 10.06 hereof.
"Agreement" means this Third 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 month immediately preceding the date of determination
times (ii) twelve, 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 month
immediately preceding the date of determination with respect to which the
Borrower has financial statements prepared, times (ii) twelve.
"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 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 LIBOR Advances, 2.750%
per annum, and (b) with respect to Base Advances, 1.750% per annum provided
that, if there exists no Default or Event of Default, then the Applicable Margin
will be the following per annum percentages applicable in the following
situations:
Base Advance LIBOR Advance
Applicability Percentage
------------- ----------
Percentage
----------
(i) If the Total 1.750% 2.750%
Leverage Ratio is equal to or
greater than 9.50 to 1.00
(ii) If the Total 1.625% 2.625%
Leverage Ratio is equal to or
greater than 9.00 to 1.00
but is less than
9.50 to 1.00
(iii) If the Total 1.500% 2.500%
Leverage Ratio is equal to or
greater than 8.00 to 1.00
but is less than
9.00 to 1.00
(iv) If the Total 1.250% 2.250%
Leverage Ratio is equal to or
greater than 7.50 to 1.00
but is less than
8.00 to 1.00
(v) If the Total 1.000% 2.000%
Leverage Ratio is equal to or
greater than 6.50 to 1.00
but is less than
7.50 to 1.00
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(vi) If the Total 0.750% 1.750%
Leverage Ratio is equal to or
greater than 6.00 to 1.00
but is less than
6.50 to 1.00
(vii) If the Total 0.500% 1.500%
Leverage Ratio is equal to or
greater than 5.50 to 1.00
but is less than
6.00 to 1.00
(viii) If the Total 0.250% 1.250%
Leverage Ratio is equal to or
greater than 5.00 to 1.00
but is less than
5.50 to 1.00
(ix) If the Total 0.000% 1.000%
Leverage Ratio is less than
5.00 to 1.00
The Applicable Margin payable by the Borrower shall be (a) 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 Total Leverage Ratio, (b) increased by 0.125% in each
instance in the table set forth above if the Senior Leverage Ratio is in excess
of 5.00 to 1.00 as tested on a quarterly basis, and (c) 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
Lender of the applicable financial statements and corresponding Compliance
Certificate. If financial statements and a Compliance Certificate of the
Borrower setting forth the Total Leverage Ratio and the Senior Leverage Ratio
are not received by the Administrative Lender by the date required pursuant to
Article VII hereof, the Applicable Margin shall be determined as if the Total
Leverage Ratio exceeds 9.50 to 1.00 and the Senior Leverage Ratio exceeds 5.00
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.
"Application" means any stand-by letter of credit application delivered
to Administrative Lender for or in connection with any stand-by Letter of Credit
pursuant to Article III hereof, in Administrative Lender's standard form for
stand-by letters of credit.
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"Art. 1D" has the meaning specified in the definition herein of
"Applicable Law".
"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
Lender, in the form of Exhibit F hereto.
"Auditor" means Price Waterhouse L.L.P., or other independent certified
public accountants selected by the Borrower and acceptable to Administrative
Lender.
"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.
"Available Commitment" means $150,000,000, as such amount may be
increased prior to March 31, 2000 in accordance with the terms of Section 2.18
hereof, and as such amount may be reduced from time to time or terminated
pursuant to Sections 2.06, 2.11 or 9.02 hereof.
"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.
"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 NationsBank, N.A. as its prime rate, and which
may not necessarily be the lowest interest rate charged by NationsBank, N.A. and
(ii) the Federal Funds Rate in effect at such time plus .50%.
"Borrower Pledge Agreement" means the Pledge Agreement of even date
herewith, 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.
5
"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.
"Capital Contribution Agreement" means that certain Capital Contribution
Agreement, dated as of May 29, 1998, among ABRY, the Parent, the Borrower and
the Administrative Lender on behalf of Lenders, substantially in the form of
Exhibit N hereto.
"Capital Expenditures" means capital expenditures, as defined in
accordance with GAAP.
"Capital Leases" means capital leases and subleases, as defined in
accordance with GAAP.
"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.
"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 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 and (c) certifying to the appropriate
Applicable Margin.
"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
6
related Interest Period, including, without limitation, payments made as a
result of the acceleration of the maturity of a Note, (b) subject to
Administrative Lenders' 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.
"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.
"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
7
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.
"Cure Sub Debt" means, for the purpose of effecting a cure under Section
8.01(a)(i) hereof and/or Section 8.01(b)(i) hereof only, subordinated
indebtedness owed by the Borrower to ABRY that meets each of the following
conditions: (a) such subordinated indebtedness must be issued upon receipt of
cash funds for a like amount and must be fully and deeply subordinated to all
other debt of the Borrower on terms and conditions, and subject to documentation
acceptable to the Majority Lenders in their sole discretion, (b) such
subordinated indebtedness shall not provide for any current pay interest or
principal, except payments of interest in kind, (c) such subordinated debt shall
not mature but shall convert to common equity of the Parent in not more than one
year from its date of issuance upon terms and conditions acceptable to the
Majority Lenders and (d) all such subordinated indebtedness in the aggregate at
any one time outstanding may not exceed an amount equal to $10,000,000.
"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) or other similar instruments, (b)
all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (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, and (d) liabilities under Synthetic
Leases. For purposes of this Agreement, the principal amount of Debt of a Person
deemed to be outstanding under (a) Synthetic
8
Leases to which a Person is a party shall be the aggregate net present value
(calculated at a discount rate of ten percent of the future Rental Obligations
which will become due and payable by such Person over the remaining term of all
Synthetic Leases) to which such Person is a party.
"Debtor Relief Laws" means applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the enforcement
of creditors' rights generally.
"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).
"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 or (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, plus (b)
amortization and depreciation for such period, plus (c) non-cash charges (minus
extraordinary 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, including Rental Obligations under Synthetic Leases (whether or not
treated as Interest Expense), plus (e) General and Administrative Expense for
such period which are reimbursable by ABRY pursuant to the terms of the Capital
Contribution Agreement, plus (f) Income Tax Expense for the Parent, the Borrower
and its Subsidiaries for such period, plus (g) an adjustment to net income 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 (h) an adjustment to net income for such period to record (i) an
increase
9
in revenue related to all new leases executed 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 cancelled leases during the period as if such
leases were terminated or cancelled as of the beginning of such period.
"Eligible Assignee" means any 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 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; and (d) central bank of any
country which is a member of the Organization for Economic Cooperation and
Development.
"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 (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. ss.9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. ss.1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C ss.6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. ss.1251 et seq.), the Clean Air Act (42 U.S.C.
ss.7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ss.2601 et seq.),
and the Occupational Safety and Health Act (29 U.S.C. ss.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 Borrower or any Obligor, within the meaning of Section
414(c) of the Code, and the regulations and rulings issued thereunder.
10
"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 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 O hereto, or such other language
as may be approved in writing by Administrative Lender.
"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)Income Tax Expense for such year, plus (b)
Fixed Charges for such year (excluding interest paid or payable, at the option
of the Borrower, in-kind), plus (c) (without duplication) all voluntary
principal prepayments on the Obligations pursuant to Section 2.04 hereof during
such period, plus (d) all General and Administrative Expense paid during such
period.
"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
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quotations for such date on such transactions received by Administrative Lender
from three federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter, dated March 17, 1998,
between the Borrower and the Administrative Lender, 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.
"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, excluding until March 31, 2000 (x) 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 and (y) accrued or paid Earn-Out Liabilities, plus (b) required or
scheduled payments with respect to Capital Leases for such period, plus (c) 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
(d) Capital Expenditures (other than those Capital Expenditures for Permitted
Acquisitions) for 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.
"General and Administrative Expense" means, for any respective period,
Borrower's general and administrative expenses, as determined on a consolidated
basis in accordance with GAAP.
"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.
12
"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. ss. 172.101,
Hazardous Substances, explosive or 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. ss. 1251 et seq., the Comprehensive Environmental Response
Compensation and Liability Act as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. ss. 9601 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. ss. 6901 et seq., and the Toxic Substances Control Act,
15 U.S.C. ss. 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.
13
"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 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.
"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
14
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 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, for so long as each is owed any portion of the Obligation or is
obligated under any portion of the Available Commitment.
"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 Lender 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 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)
$20,000,000 and (b) the remainder of the Available Commitment minus the sum of
(i) all outstanding Advances plus (ii) the aggregate face amount of all
outstanding Letters of Credit plus (iii) reimbursement obligations under Article
III hereof.
"Letters of Credit" means the irrevocable standby letters of credit
issued by Administrative Lender under and pursuant to Article III hereof, as
each may be amended, modified, substituted, increased, replaced, renewed or
extended from time to time.
"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 Lender.
"LIBOR Rate" means a simple per annum interest rate equal to the lesser
of (a) the Highest Lawful Rate, and (b) sum of the
15
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 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. 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,
16
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 Papers" means this Agreement, the Notes, the Security Agreements,
Borrower Pledge Agreement, the Subsidiary Guaranties, the Parent Guaranty, the
Capital Contribution Agreement, the Parent Pledge Agreement, the Fee Letter,
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 Lender related to any Letter of Credit, 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.
"Majority Lenders" means any combination of Lenders having at least
66.67% of the aggregate amount of outstanding Advances hereunder, provided,
however, that if no Advances are outstanding, such term means any combination of
Lenders having Specified Percentages equal to at least 66.67%.
"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 the validity or enforceability of (i) any Note, (ii) this
Agreement or (iii) any material Loan Paper or Loan Papers which in the aggregate
are material, or (c) cause a Default or Event of Default.
"Maturity Date" means December 31, 2005, or such earlier date on which
the total amount of outstanding Obligations are due and payable (including,
without limitation, whether by acceleration, scheduled reduction of the
Available Commitment to zero or mandatory or voluntary commitment reduction of
the Available Commitment to zero).
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, a Lender is permitted to charge on the Obligations.
"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
17
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) 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.
"Non-Conforming Ground Leases" means those Ground Leases with respect to
which any item required by Schedule 2.16 hereof or any provision set forth in
the Estoppel and Attornment Language in substantially similar form to the
Estoppel and Attornment Language is not delivered to the Administrative Lender
in form and substance satisfactory to the Administrative Lender within (a) 90
days after the Closing Date, for all Ground Leases listed on Schedule 5.01(x)
hereto, and (b) within 90 days after the date of any acquisition or creation of
any Ground Lease for all Ground Leases not listed on Schedule 5.01(x); provided
that, notwithstanding the foregoing or any other provision of this Agreement or
the other Loan Papers,
18
those certain ten subleases acquired in connection with the acquisition by the
Borrower of WEO Tower, Inc., showing Nextel Communications as Sublessor, shall
be excluded from this definition of "NonConforming Ground Leases" to the extent
that each such sublease would be included solely because of paragraph 17
thereof.
"Note" means each Note of the Borrower evidencing Advances hereunder,
substantially in the form of Exhibit A 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 Lender 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 Lender 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 Lender or Lenders) to Administrative
Lender 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. Notwithstanding the foregoing, ABRY shall
not be considered an Obligor for purposes of Sections 9.01(g), (h), (k) and (l)
hereof.
"Operating Cash Flow" means, for the Borrower and its Subsidiaries on a
consolidated basis for the most recently completed calendar month, the sum of
(a) pre-tax income or deficit, as the case may be (excluding extraordinary items
and income from
19
the sale of assets) for such month, plus (b) interest expense on Debt for
Borrowed Money of the Borrower and its Subsidiaries on a consolidated basis for
such month, plus (c) depreciation and amortization expense for such month, plus
(d) general and administrative expenses for such month.
"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.
"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, dated
March 20, 1998, between the Parent and The Bank of New York, as trustee, and all
other written agreements and documentation relating to the Parent Senior Notes.
"Permitted Acquisition" means (i) the development, construction or
acquisition of towers or rooftop space, 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 Liens" means, as applied to any Person:
20
(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
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;
(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.
21
"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.
"Primary Non-Conforming Tenant Leases" means those Tenant Leases which
are oral and not subject to any written agreement, except those Tenant Leases
that are Secondary NonConforming Tenant Leases.
"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
minus (without duplication) interest that is payable in-kind at the option of
the Borrower, the Parent or any Subsidiary of the Borrower, 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 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; provided, however, that if no
Advances are outstanding, such term means in accordance with such Lender's
Specified Percentage.
"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.
"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, in accordance with its Specified
Percentage.
"Refinancing Advance" means any Advance which is used to pay the
principal amount (or any portion thereof) of an Advance at the end of its
Interest Period and which, after giving effect to such
22
application, does not result in an increase in the aggregate amount of
outstanding Advances.
"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.
"Release Date" means the date on which the Notes have been paid, all
other Obligations due and owing have been paid and performed in full, and the
Available Commitment has been terminated.
"Rental Obligations" means amounts payable by a lessee under a lease
including, without limitation, amounts payable under any renewal or purchase
option in favor of the lessee which, if not paid, will result in a material
forfeiture of rights, interest or property available to such lessee (i.e. a
forfeiture of rights, interest or property with a fair market value materially
greater than the cost of exercising such renewal or purchase option.)
"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 Subordinated
Debt, or the establishment of any sinking fund or otherwise the setting aside of
any funds with respect thereto.
"Rights" means rights, remedies, powers, and privileges.
"Secondary Non-Conforming Tenant Leases" means, on any date of
determination, each such Tenant Lease (a) which is oral and not subject to any
written agreement, or (b) with respect to which any Lien of the Administrative
Lender or any foreclosure and/or operation of the Tower on which such Tenant
Lease is located by the Lenders is prohibited, unenforceable or null and void,
whether by contractual provision, operation of law or otherwise, or (c) which
has any provision preventing, hindering or prohibiting the Administrative Lender
from directly receiving the rents, receivables or other Tenant Lease Revenues
from the lessee (or which is prevented, hindered or prohibited by the operation
of Law), provided that no Tenant Lease shall be a Secondary Non-Conforming
Tenant Lease unless (A) the Borrower is at all times diligently and in good
faith pursuing either a written agreement or eliminating the problems described
in (b) or (c) above (a "Curing
23
Action") with respect to such Tenant Lease, (B) negotiations regarding such
Curing Action have not been terminated and are proceeding toward consummation,
(C) the lessee under each such Tenant Lease is current under its monetary
obligations to the Borrower in accordance with past and current practice
generally, (D) the FCC database regarding such Tenant Lease shows (I) that the
lessee under such Tenant Lease has been licensed to use the applicable Tower and
(II) does not indicate that the lessee has filed for approval to remove or
transfer from such Tower, (E) the Borrower is not aware and has not received
notice that any such lessee is moving from the Tower within the next six months,
and (F) such Curing Action with respect to such Tenant Lease shall have been
consummated within (x) six months after the Closing Date, for each Tenant Lease
listed on Schedule 5.01(w) hereto, and (y) within six months after the date of
any acquisition or creation of any Tenant Lease for each Tenant Lease not listed
Schedule 5.01(w) hereto, provided that, if the Borrower can demonstrate to the
satisfaction of the Administrative Lender that any Curing Action with respect to
any Tenant Lease is still probable after the expiration of the six month period,
any such Tenant Lease will be included in the definition of Secondary Non-
Conforming Tenant Lease for an additional six month period.
"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 minus Debt of the Parent included in the definition of Total
Debt.
"Senior Leverage Ratio" means the ratio, at the end of the accounting
period with respect to which such determination is made, of (a) the remainder of
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) permitted to
be incurred under Sections 8.02(h) hereof and (ii) (without duplication) owed to
ABRY, to (b) Annualized EBITDA, provided that, the calculation of the Senior
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.
"Shareholder" or "Shareholders" means, on any date of determination, the
shareholders of the Parent.
24
"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 Lender, as designated by Administrative Lender from time to
time.
"Specified Percentage" means, as to any Lender, the percentage indicated
beside its name on the signature pages hereof, or as adjusted or specified (i)
in accordance with Section 2.18 hereof, (ii) in any Assignment and Acceptance or
(iii) in any amendment to this Agreement.
"Stockholders Agreement" has the meaning ascribed thereto in Section
8.08(b)(vi) hereof.
"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,
25
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.
"SuperMajority Lenders" means any combination of Lenders having at least
73% of the aggregate amount of outstanding Advances hereunder, provided,
however, that if no Advances are outstanding, such term means any combination of
Lenders having Specified Percentages equal to at least 73%.
"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.
"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 Leverage Ratio" means the ratio, at the end of the accounting
period with respect to which such determination is made, of (a) the remainder of
Total Debt of the Parent, the Borrower and its Subsidiaries (exclusive of Debt
owed to each other), minus the sum of Subordinated Debt outstanding which is (i)
permitted to be incurred under Section 8.02(h) hereof and (ii) (without
duplication) owed to ABRY, to (b) Annualized EBITDA, provided that, the
calculation of the Total Leverage Ratio shall exclude revenues or charges
attributable to Properties of the Borrower and its
26
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.
"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) all newly executed leases 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.
"Tower Construction Advances" means those Advances used by the Borrower
solely for the construction, refurbishment or development of Towers and
designated as a Tower Construction Advance in the monthly certification required
by Section 7.07(a) hereof, in an aggregate amount outstanding on any date of
determination not to exceed the amount permitted by Section 8.01(f) hereof.
Notwithstanding anything herein to the contrary (a) no Advance may be a Tower
Construction Advance if twelve consecutive months have passed after the date
such Tower Construction Advance was made or designated as a Tower Construction
Advance, and (b) any particular Advance designated as a Tower Construction
Advance may only be designated once as a Tower Construction Advance.
"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 March 31, 2000, $100,000,000
(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 Available Commitment in
accordance with the terms of Section 2.18 hereof), and (b) on and after March
31, 2000, $0.00.
"Withdrawal Liability" has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
27
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.
ARTICLE II. AMOUNTS AND TERMS OF ADVANCES
2.01. The Advances. 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
Maturity Date, in an aggregate principal amount not to exceed at any time
outstanding such Lender's Specified Percentage of the Available Commitment.
Subject to the terms and conditions of this Agreement, the Borrower may borrow,
repay and reborrow the Advances; provided, however, that at no time shall the
sum of (a) all outstanding Advances plus (b) the face amount of all outstanding
Letters of Credit plus (c) reimbursement obligations under Article III hereof,
ever exceed the Available Commitment.
2.02. Making Advances.
(a) Each Borrowing of Advances shall be made upon the written notice of
the Borrower, received by Administrative Lender 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;
(iii) the amount of such proposed Borrowing which, (A) in the
case of Advances, shall not exceed the unused portion of the Available
Commitment, (B) shall, in the case of a Borrowing of Base Advances, be
in an amount of not less than $100,000 or an integral multiple of
$50,000 in excess thereof (or any lesser amount if such amount is the
remaining undrawn portion under the Available Commitment) and (C) shall,
in the case of a Borrowing of LIBOR Advances, be in an amount of not
less than $500,000 or an integral multiple of $100,000 in excess
thereof; and
28
(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 Lender 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 Lender, at its office at NationsBank Plaza, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, such Lender's 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 Lender 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 Lender in writing.
(c) After giving effect to any Borrowing, (i) there shall not be more
than five different Interest Periods in effect and (ii) the aggregate principal
amount of outstanding Advances, Letters of Credit, and reimbursement obligations
under Article III hereof shall not exceed the Available Commitment.
(d) No Interest Period applicable to any Advance shall extend beyond the
Maturity Date.
(e) Unless a Lender shall have notified Administrative Lender prior to
the date of any Advance that it will not make available its Specified Percentage
of any Advance, Administrative Lender may assume that such Lender has made the
appropriate amount available in accordance with Section 2.02(a) hereof, and
Administrative Lender 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 Lender, such Lender and the
Borrower severally agree to repay to Administrative Lender immediately on demand
such corresponding amount together with interest thereon, from the date such
amount is made available to the Borrower until the date such amount is repaid to
Administrative Lender, 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 Specified Percentage
of any Advance hereunder shall not relieve any other Lender of its obligation,
if any, to make available its 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.
29
(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) The Advances made by each Lender shall be evidenced by a Note in the
amount of such Lender's Specified Percentage of the Available Commitment in
effect on the Closing Date (as the same may be modified pursuant to Section
11.04 hereof).
(b) Administrative Lender's and each Lender's records shall be
presumptive evidence as to amounts owed Administrative Lender and such Lender
under the Notes and this Agreement.
2.04. Optional Prepayments.
(a) The Borrower may, upon at least two Business Days prior written
notice to Administrative Lender 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 $100,000 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 $500,000 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 Lender 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 Advances made solely pursuant to this Section 2.04
shall cause the Available Commitment to be reduced.
30
2.05. Mandatory Prepayments.
(a) Excess Cash Flow. Within 130 days after the end of each fiscal year
of Borrower ending on or after March 31, 2000, the Borrower shall pay to
Administrative Lender for the Ratable account of Lenders an amount equal to (i)
50% of Excess Cash Flow for the preceding fiscal year if the Senior 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 Senior Leverage
Ratio calculated at the end of the same period is greater than or equal to 4.00
to 1.00. All prepayments made pursuant to this Section 2.05(a) shall be applied
to reduce outstanding Advances (which amounts shall also reduce the Available
Commitment in accordance with the terms of Section 2.11(c)(iv) hereof).
Notwithstanding anything herein to the contrary, no Advance constituting a Tower
Construction Advance will be included in the Senior Debt calculation to
determine the Senior Leverage Ratio in order to determine compliance with this
Section 2.05(a), but only so long as (A) such Advance remains a Tower
Construction Advance, and (B) there is not included in the calculation of EBITDA
for the purposes of this Section 2.05(a) only, revenue attributable to any new
Tower being constructed with the proceeds of any such Tower Construction Advance
for so long as any such Tower Construction Advance remains designated as a Tower
Construction Advance, it being understood by the parties hereto that,
notwithstanding the use of Tower Construction Advances to refurbish or replace
any existing Tower, revenue attributable to such refurbished or replacement
Tower may not be included in the calculation of EBITDA in order to determine the
Senior Leverage Ratio in order to determine compliance with this Section
2.05(a).
(b) Additional Equity and Allowed Debt. To the extent that the Borrower
or any of its Subsidiaries issues any public or private indebtedness (except
that permitted to be incurred under Section 8.02 hereof) or equity securities
(except debt and equity described in Section 8.02(c) hereof or pursuant to the
Capital Contribution 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, after March 31, 2000, reduce
the Available Commitment in accordance with the terms of Section 2.11(c)(v)
hereof. Upon the occurrence of a "Change of Control" as that term is defined in
the Parent Senior Notes Documentation, the Borrower will repay all Advances and
Obligations hereunder (and the Available Commitment shall correspondingly reduce
to zero in accordance with the terms of Section 2.11(c)(vii) hereof).
31
(c) Asset Sales. To the extent that 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, if
such payment is made after March 31, 2000, such prepayment shall also reduce the
Available Commitment in accordance with the terms of Section 2.11(c)(vi) hereof.
(d) Mandatory Prepayments, Generally. 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.
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).
(b) Available Commitment Reduction. On the date of each reduction of the
Available 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 (i) the amount of all Advances outstanding on the date of reduction
plus (ii) the outstanding face amount of Letters of Credit outstanding on such
date plus (iii) the amount of reimbursement obligations under Article III hereof
on such date, exceeds the Available Commitment as reduced, which principal
payment may not be made by means of a Refinancing Advance.
(c) Maturity Date. All outstanding Obligations shall be due and payable
in full on the Maturity Date.
(d) Repayments, Generally. Any repayments made pursuant to 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.
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:
32
(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
Maturity Date. 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 Interest Period, and
(ii) for all other outstanding Advances, the Base Rate plus 2%. 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
Lender 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 $100,000 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
33
Advances comprised in the same Borrowing (in an aggregate amount not
less than $100,000 or an integral multiple of $50,000 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
$500,000, 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 Lender 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;
(ii) the aggregate amount of Advances to be converted or
continued;
(iii) the nature of the proposed conversion or continuation;
and
(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 five different Interest
Periods.
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2.10. Fees.
(a) Facility Fee. Subject to Section 11.08 hereof, the Borrower shall
pay to Administrative Lender for the account of each of the Lenders an
origination and facility fee as set forth in the Fee Letter between
Administrative Lender and the Borrower.
(b) Commitment Fee. Subject to Section 11.08 hereof, the Borrower shall
pay to Administrative Lender for the Ratable account of Lenders a commitment fee
on the average daily amount of the difference between (i) the Available
Commitment and (ii) the sum of all Advances outstanding and the face amount of
all outstanding Letters of Credit, at a per annum rate equal to (A) if the Total
Leverage Ratio (as determined in the most recently delivered Compliance
Certificate in accordance with the terms of Section 7.03 hereof) is greater than
or equal to 6.50 to 1.00, 0.500%, (B) if the Total Leverage Ratio (as determined
in the most recently delivered Compliance Certificate in accordance with the
terms of Section 7.03 hereof) is less than 6.50 to 1.00 but greater than or
equal to 4.50 to 1.00, 0.375% per annum, and (C) if the Total Leverage Ratio (as
determined in the most recently delivered Compliance Certificate in accordance
with the terms of Section 7.03 hereof) is less than 4.50 to 1.00, 0.250% per
annum, payable in each case in arrears on each Quarterly Date and on the
Maturity Date, commencing with the first Quarterly Date after the Closing Date,
and continuing until the Maturity Date.
2.11. Reduction of Available Commitment.
(a) Mandatory Termination of the Available Commitment. The Available
Commitment shall reduce to zero and terminate on the Maturity Date.
(b) Mandatory Scheduled Reduction of the Available Commitment. After
March 31, 2000, the Available 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 Available Commitment in effect on March 31, 2000 opposite
each such Quarterly Date, until the Available Commitment has been reduced to
zero. The first such automatic reduction in the Available Commitment shall occur
on the first Quarterly Date after March 31, 2000, and continue thereafter as
follows:
REDUCTION PERCENTAGE is equal to the
Percentage of the Available
Date of Automatic Reduction Commitment in effect on
of the Available Commitment March 31, 2000
--------------------------- --------------
June 30, 2000 3.33%
September 30, 2000 3.33%
December 31, 2000 3.34%
35
March 31, 2001 3.75%
June 30, 2001 3.75%
September 30, 2001 3.75%
December 31, 2001 3.75%
March 31, 2002 5.00%
June 30, 2002 5.00%
September 30, 2002 5.00%
December 31, 2002 5.00%
March 31, 2003 5.00%
June 30, 2003 5.00%
September 30, 2003 5.00%
December 31, 2003 5.00%
March 31, 2004 5.00%
June 30, 2004 5.00%
September 30, 2004 5.00%
December 31, 2004 5.00%
March 31, 2005 3.75%
June 30, 2005 3.75%
September 30, 2005 3.75%
December 31, 2005 3.75%
(c) Reduction of the Available Commitment. The Available Commitment
shall be permanently reduced from time to time:
(i) as set forth, and in accordance with, the terms of Section 8.01(a)
hereof,
(ii) as set forth, and in accordance with, the terms of Section 8.01(b)
hereof,
(iii) as set forth, and in accordance with, the terms of the Capital
Contribution Agreement,
(iv) on the date of, and by the amount of, each Excess Cash Flow
mandatory prepayment required by Section 2.05(a) hereof,
(v) on the date of, and by the amount of, each mandatory prepayment made
after March 31, 2000 from the issuance of equity or debt, in each case
only as required to be prepaid by Section 2.05(b) hereof,
(vi) on the date of, and by the amount of, each mandatory prepayment
made after March 31, 2000 from the sale of assets, in each case only as
required to be prepaid by Section 2.05(c) hereof, and
(vii) on the date of any occurrence of a "Change of Control" as that
term is defined in the Parent Senior Notes Documentation, the Available
Commitment will automatically be reduced to zero and terminate.
36
No reduction in the Available Commitment set forth in 2.11(c) above
shall reduce or relieve the automatic scheduled reduction of the Available
Commitment required by Section 2.11(b) above.
(d) Voluntary Available Commitment Reductions. The Borrower may from
time to time, upon notice to Administrative Lender not later than 1:00 p.m.,
five Business Days in advance, terminate in whole or reduce in part the
Available 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 $1,000,000. No voluntary
reduction in the Available Commitment permitted by this Section 2.11(d) shall
reduce or relieve the automatic scheduled reduction of the Available Commitment
required by Section 2.11(b) above.
(e) Available 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 outstanding
Advances exceed the applicable Available 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 Available
Commitment may not be increased or reinstated, except in accordance with Section
2.18 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 Lender 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 Lender, for the Ratable account of Lenders unless otherwise
specifically provided herein, at
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Administrative Lender's office at NationsBank 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 Ms. Xxxxx Xxxxx (000) 000-0000, or such other Person as Administrative
Lender may from time to time specify.
(b) Unless Administrative Lender 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 Lender 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 Lender
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 Lender or a Lender of an interest rate, fee or
commission hereunder shall be 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.
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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
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 Notes, the Letters
of Credit or reimbursement obligations by an amount deemed by such
39
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
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.
40
(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 Lender 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 Lender 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 Lender 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 Lender 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 suspended until such Lender notifies Administrative Lender that such
Lender has determined that the circumstances causing such suspension no longer
exist and Administrative Lender notifies the Borrower of such fact.
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(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 the Advances shall be available
(and the Borrower shall use such proceeds) solely (a) on the Closing Date, to
refinance existing indebtedness of the Borrower, (b) for Permitted Acquisitions,
(c) for Capital Expenditures permitted under the terms of this Agreement, (d)
for working capital and (e) for other lawful corporate purposes.
2.16. Collateral and Collateral Call.
(a) Collateral. Payment of the Obligations 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 and (v) in
accordance with Section 6.15 hereof, leasehold deeds of trust and/or mortgages
on Borrower's leasehold interest under each Ground Lease (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 Lender may from time to time reasonably request to create and
perfect a first Lien for the benefit of the Administrative Lender and the
Lenders in the Collateral.
(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 Lender 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 (ii) to, and agrees to cause the Subsidiaries of the
Borrower to, grant the Administrative Lender and the Lenders from time to time
at the request of the Lenders 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 real estate. The Borrower shall comply with Section 6.15(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
Lender 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 Lender with UCC-1's,
new security
42
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 Lender from time to time.
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 Lender 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 Lender 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 Available Commitment.
Prior to March 31, 2000, upon written request by the Borrower to
Administrative Lender and other existing Lenders of its choice twenty Business
Days prior to the proposed effective date of the proposed increase, the
Available Commitment shall, subject to the further terms and conditions set
forth below, increase to a maximum of $250,000,000 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 Available Commitment and the
subsequent Advance to the Borrower up to the amount of the Available
Commitment; and
(c) On any date of proposed increase, there shall have occurred no
material adverse change in the Borrower's business, assets or financial
condition since December 31, 1997; and
43
(d) On any date of proposed increase, the sum of (i) all Advances
outstanding (after giving effect to any proposed Advance to be made on
such date, plus (ii) the aggregate face amount of all outstanding
Letters of Credit (after giving effect to any proposed Letter of Credit
to be made on such date), plus (iii) (without duplication) the sum of
all reimbursement obligations with respect to all outstanding Letters of
Credit, shall not exceed the Available Commitment; and
(e) The proposed increase shall occur prior to March 31, 2000 and
the Available Commitment as increased shall not be in excess of the sum
of the Available Commitment prior to such increase plus the Unavailable
Commitment prior to such increase; and
(f) Upon satisfaction of each of the conditions precedent in this
Section 2.18, the Borrower shall be entitled to increase the Available
Commitment not more than five times, in an aggregate amount for both
such increases not to exceed the Unavailable Commitment . Each Lender
specified by the Borrower shall have received not less than twenty days'
prior written notice from the Borrower requesting such Available
Commitment increase. Each such Lender electing to participate in such
Available 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 Lender that is equal to or less than its
proposed portion of the Available 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 Lender 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 Lender; and
(h) Each of the two proposed increases shall be in an aggregate
minimum amount of $10,000,000 and $5,000,000 multiples thereof; and
(i) The Administrative Lender 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
44
(j) Each new Lender (including any new Lenders party hereto) shall
have received a promissory Note, and the Borrower and each new Lender
agrees to execute any and all such documents deemed necessary by the
Administrative Lender 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 Lender shall
deliver to each Lender evidence of new Specified Percentages adjusted to
give effect to the increase in the Available 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 Lender documentation acceptable to the Administrative
Lender evidencing such new Lender's acceptance of this Agreement and all
the other Loan Papers in form and substance reasonably acceptable to the
Administrative Lender (and making such lender a party to this Agreement
and the other Loan Papers); and
(m) The Administrative Lender 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 Lender 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 Available Commitment shall (i) never exceed the sum of the
Available 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 Available
Commitment; and
(q) The Administrative Lender on behalf of each Lender shall have
received all amendments to security agreements, deeds of trust and
mortgages as the Administrative Lender 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 Available Commitment without its written consent
45
in its sole discretion. In connection with any increase to the Available
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 Lender
to effectuate the intent of this Section 2.17. 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.
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit. The Borrower shall give the
Administrative Lender not less than five Business Days prior written notice of a
request for the issuance of a Letter of Credit, and the Administrative Lender
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, the
Administrative Lender 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. No Letter of Credit shall have a maturity extending beyond the
earliest of (i) the 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
Available 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 Lender in its discretion. The
Lenders shall participate ratably in any liability under the Letters of Credit
and in any unpaid reimbursement obligations of the Borrower with respect to any
Letter of Credit in their 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 Available
Commitment available, so that at no time shall the sum of (i) all outstanding
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 the Available
Commitment, and at no time shall the sum of all Advances by any Lender made 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 its Specified Percentage of the Available Commitment.
3.02. Letters of Credit Fee. In consideration for the issuance of each
Letter of Credit, the Borrower shall pay to (a) the Administrative Lender for
its own account, an application and
46
processing fee in the amount of $350.00 on each Letter of Credit, due and
payable on the date of issuance of each Letter of Credit, and (b) the
Administrative Lender for the account of the Administrative Lender and the
Lenders in accordance with their Specified Percentages, a per annum fee for each
Letter of Credit equal to (i) the product of 1/8 of 1 percent multiplied by the
face amount of each such Letter of Credit, plus (ii) the product of the
Applicable Margin for LIBOR Advances on the date of issuance multiplied by the
face amount of each such Letter of Credit. Each fee for each Letter of Credit
under subsection (b) above shall be due and payable to the Administrative Lender
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 ending on the expiration 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 agrees to reimburse Administrative Lender
immediately upon demand by Administrative Lender, and in immediately available
funds, for any payment or disbursement made by Administrative Lender under any
Letter of Credit. Payment shall be made by the Borrower with interest on the
amount so paid or disbursed by Administrative Lender 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 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 Specified
Percentage, shall automatically be deemed made on the date of any such payment
or disbursement made by Administrative Lender in the amount of such obligation
and subject to the terms of this Agreement.
(b) The Borrower hereby also agrees to pay to Administrative Lender
immediately upon demand by Administrative Lender 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 Lender shall elect. All
such amounts deposited with Administrative Lender shall be and shall remain
funds of the Borrower on deposit with Administrative Lender and may be invested
by Administrative Lender as Administrative Lender shall
47
determine. Such amounts may not be used by Administrative Lender to pay the
drawings under the Letters of Credit; however, such amounts may be used by
Administrative Lender as reimbursement for Letter of Credit drawings which
Administrative Lender 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
Lender 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.
(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 Lender
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 Lender in full upon demand, whether by borrowing
Advances to pay such reimbursement obligations or otherwise, the Lenders shall
reimburse Administrative Lender in accordance with each Lender's Specified
Percentage for amounts due 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 Lender.
(e) The Borrower shall indemnify and hold Administrative Lender or any
Lender, its officers, directors, representatives and employees harmless from
loss for any claim, demand or liability which may be asserted against
Administrative Lender 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 LENDER OR SUCH INDEMNIFIED
PARTY), and shall pay Administrative Lender for reasonable fees of attorneys
(who may be employees of Administrative Lender) and legal costs paid or incurred
by Administrative Lender 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 Lender or such
indemnified party. If the Borrower for any reason fails to indemnify or pay
Administrative Lender or
48
such indemnified party as set forth herein in full, the Lenders shall indemnify
and pay Administrative Lender upon demand, in accordance with each Lender's
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 Lender (to the extent Administrative
Lender is not otherwise reimbursed by the Borrower in accordance with Section
3.03(a) hereof) on demand for such Lender's Specified Percentage of each draw
paid by Administrative Lender 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 shall continue after the Maturity Date and shall
survive termination of any Loan Papers.
3.05. Administrative Lender's Obligations.
(a) Administrative Lender 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 Lender assumes no responsibility for
the financial condition of the Borrower and its Subsidiaries or for the
performance of any obligation of the Borrower. Administrative Lender 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 Lender
shall be under no liability to any Lender, with respect to anything the
Administrative Lender may do or refrain from doing in the exercise of its
judgment, the sole liability and responsibility of Administrative Lender being
to handle each Lender's share on as favorable a basis as Administrative Lender
handles its own share and to promptly remit to each Lender its share of any sums
received by Administrative Lender under any Application. Administrative Lender
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 Lender 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
49
negligence or willful misconduct, and no Lender waives its right to institute
legal action against Administrative Lender for wrongful payment of any Letter of
Credit due to Administrative Lender's gross negligence or willful misconduct.
Administrative Lender 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 Lender to be genuine or authentic and to be signed by the proper
party.
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to Closing and the Initial Advance. The
obligation of each Lender to sign this Agreement and to make the initial Advance
or issue the first Letter of Credit is subject to receipt by the Administrative
Lender of each of the following, in form and substance satisfactory to the
Administrative 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
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
or should be qualified to do business;
(b) duly executed Notes, payable to the order of each Lender and in an
amount for each Lender equal to its Specified Percentage of the Available
Commitment;
(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
50
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;
(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) reimbursement for Administrative Lender of its reasonable fees and
expenses and for Special Counsel's reasonable fees and expenses rendered through
the date hereof;
(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 other evidence which the
Administrative Lender, 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, 1997; (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) evidence on the Closing Date that the Borrower and ABRY have entered
into an amendment to the Capital Contribution Agreement acceptable to the
Administrative Lender, providing that ABRY will make equity contributions to the
Borrower up to $50,000,000 (inclusive of contributions made prior to the Closing
Date) to be used by the Borrower to (i) make Permitted Acquisitions, (ii) at the
option of the Lenders, to repay Obligations to the Lenders in the event of (A)
any payment Default or Event of Default or (B) any Default or Event of Default
under any provision of Section 8.01 hereof, in each case in an amount equal to
the lesser of the amount necessary so that either the Borrower is in compliance
with all provisions of Section 8.01
51
hereof, and (iii) the extent that there exists a difference between any cash
distribution of 95% of taxable income required to maintain REIT status minus the
maximum tax liability of the Shareholders as a result of the operations of the
Borrower, taking into account all tax benefits available to the Shareholders as
a result of the operations of the Borrower;
(k) evidence that the Parent shall have (i) issued the Parent Senior
Notes on terms and conditions acceptable to the Administrative Lender, (ii)
entered into Parent Senior Notes Documentation that is acceptable to the
Administrative Lender, and (iii) received not less than $190,000,000 in net
proceeds from the issuance of the Parent Senior Notes;
(l) a duly completed Compliance Certificate evidencing no Default or
Event of Default as of the Closing Date; and
(m) in form and substance satisfactory to the Lenders and Special
Counsel, such other documents, instruments and certificates as the
Administrative Lender 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 Lender 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 Lender. 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 Lender from the Borrower prior to the making of
such Advance or such Letter of Credit;
(c) There shall not exist a Default hereunder or an Event of Default
hereunder and none shall exist as a result of making any
52
such Advance or such Letter of Credit, and the Administrative Lender 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, 1997;
(e) In the case of each Letter of Credit, Borrower shall have delivered
to the Administrative Lender a duly executed and complete Application acceptable
to Administrative Lender; and
(f) The aggregate outstanding Advances, after giving effect to such
proposed Advance, plus the sum of (i) the face amount of all outstanding Letters
of Credit, and (ii) reimbursement obligations under Article III hereof, shall
not exceed the Available Commitment.
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(c) and 6.16 hereof.
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
53
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.
(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 Lender on behalf of the Lenders), in accordance with their
respective terms, including any borrowings hereunder.
54
(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 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
55
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 financial statements at December 31, 1996 and audited financial
statements at December 31, 1997, 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 Lender
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
56
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 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.
57
(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 G, 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 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
58
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 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.
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(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
Lender 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 Lender to secure the Obligations and delivered to
the Administrative Lender together with stock powers executed in blank. All
Capital Stock of the Borrower is pledged to the Administrative Lender 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
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 Available Commitment or the Advances hereunder. The Borrower agrees to
indemnify and hold harmless the Administrative Lender 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.
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(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 Lender 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 Primary Non-Conforming
Tenant Lease or a Secondary Non-Conforming Tenant Lease. No Tenant Lease is a
Primary Non-Conforming Tenant Lease or a Secondary Non-Conforming Tenant Lease,
except, if the Borrower is in compliance with Section 6.15(c) below, the
Borrower
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may have Primary NonConforming Tenant Leases and Secondary Non-Conforming 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 Lender 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. No Ground
Lease is a NonConforming Ground Lease except, if the Borrower is in compliance
with Section 6.15(c) below, the Borrower may have Non-Conforming Ground 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(b) and (c)
below.
(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) Parent (i) 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, (ii) has not engaged in any
"prohibited transactions" as defined in Section 857(b)(6)(B)(iii) and (C) of the
Code and (iii) 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.
(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.
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 each
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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 are outstanding and unpaid or the
Available 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.
6.02. Business; 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 agreement 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.
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
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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 Lender of any proposed
termination or cancellation of such policy, whether on account of default or
otherwise and all property insurance shall name the Administrative Lender 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 Lender 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 Lender 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.
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6.09. Use of Proceeds. The Borrower shall use the proceeds of Advances
solely (a) on the Closing Date, to refinance existing indebtedness of the
Borrower, (b) for Permitted Acquisitions, (c) for Capital Expenditures permitted
under the terms of this Agreement, (d) for working capital and (e) for other
lawful corporate purposes.
6.10. Indemnity.
(a) The Borrower agrees to defend, protect, indemnify and hold harmless
the Administrative Lender, 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 Lender or any Lender (other than those
matters raised exclusively by a participant against the Administrative Lender 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 any claim or liability that arises as the
result of the gross negligence or willful misconduct of any 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. If for any reason the foregoing indemnification is
unavailable to any Indemnitee or insufficient to hold any Indemnitee harmless
with respect to Indemnified Matters, then the Borrower shall contribute to the
amount paid or payable by such Indemnitee as a result of
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such loss, claim, damage or liability in such proportion as is appropriate to
reflect not only the relative benefits received by the Borrower and the
Borrower's stockholders on the one hand and such Indemnitee on the other hand
but also the relative fault of the Borrower and such Indemnitee, as well as any
other relevant equitable considerations. The reimbursement, indemnity and
contribution 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 Lender, 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 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 Lender 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
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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 Lender 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 May 1, 1998,
the Borrower will enter into an Interest Rate Protection Agreement on terms
acceptable to the Administrative Lender providing for interest rate protection
for one year for 50% of the principal of the Obligations outstanding on May 1,
1998, 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 Lender 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, the Borrower shall, and shall cause the Parent to, cause such Capital
Stock to be pledged to the Administrative Lender on behalf of Lenders to secure
the Obligations in accordance with documentation substantially in the form of
Exhibit M hereto.
6.14. Continued Status as a Real Estate Investment Trust; Prohibited
Transactions. Parent (a) will continue to be qualified as a real estate
investment trust as defined in Section 856 of the Code, (b) will not engage in
any "prohibited transactions" as defined in Section 857(b)(6)(B)(iii) or (C) of
the Code, (c) will continue to satisfy the conditions and limitations set forth
in Sections 856(b) and 856(c) of the Code and (d) will do all acts necessary to
continue to be entitled to a dividend paid deduction under Section 857 of the
Code and (d) each of Borrower and each of its Subsidiaries will continue to be a
Qualified REIT Subsidiary.
6.15. Tenant Leases, Ground Leases and Fee Owned Property.
(a) Tenant Leases. 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 Primary
Non-Conforming Tenant Leases or Secondary Non-Conforming Tenant Leases, provided
that, the Borrower is permitted to have (i) Primary Non-Conforming Tenant Leases
so long as the sum of the aggregate Tenant Lease Revenues from all Primary
Non-Conforming Tenant Leases, at no time after the 90th day
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after the Closing Date exceeds fifteen percent of the total revenues of the
Borrower and its Subsidiaries for the most recently completed calendar month
during the term of this Agreement, and (ii) Secondary Non-Conforming Tenant
Leases, so long as the sum of the aggregate Tenant Lease Revenues from all
Secondary Non-Conforming Tenant Leases in any calendar month does not exceed
twenty percent of the total revenues of the Borrower and its Subsidiaries for
such completed calendar month.
(b) Ground Leases and Fee Owned Real Property. 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 Lender in writing. The Borrower shall use its best efforts to
immediately provide the Lenders with each item for each piece of real Property
(whether leased or owned) required on Schedule 2.16 hereto in accordance with
the terms thereon 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. The Borrower shall not permit to exist Non-Conforming Ground Leases
which have aggregate Tower Cash Flow from all Towers located on NonConforming
Ground Leases in excess of thirty percent of Operating Cash Flow at any time (on
any date of determination) during the term of this Agreement.
(c) Breach of Section 6.15(a) and (b) above. In the event any provision
of Section 6.15(a) or (b) 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) or (b) 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 (A) with respect to a breach under Section 6.15(a) hereof, all Tenant Lease
Revenues from any Primary Non-Conforming Tenant Lease or Secondary Non-
Conforming Tenant Lease, as applicable, in excess of the applicable percent
limitation, will be excluded from revenues for the purpose of
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determining EBITDA in connection with any determination of (I) the Total
Leverage Ratio (with respect to Section 8.01(a) hereof, Commitment Fees and the
Applicable Margin), the Senior Leverage Ratio (with respect to 8.01(b) hereof)
and the debt service coverage ratio set forth in Section 8.01(d) hereof, and (B)
with respect to a breach under Section 6.15(b) hereof, all Tower Cash Flow from
any Tower located on a Non-Conforming Ground Lease in excess of the thirty
percent limitation will be excluded from revenues for the purpose of determining
EBITDA in connection with any determination of (I) the Total Leverage Ratio
(with respect to Section 8.01(a) hereof, Commitment Fees and the Applicable
Margin), the Senior Leverage Ratio (with respect to Section 8.01(b) hereof) and
the debt service coverage ratio set forth in Section 8.01(d) hereof, and, in
each case, such exclusion from EBITDA for such purposes will continue until five
Business Days after the date the Borrower delivers to the Administrative Lender
a certificate of an Authorized Officer certifying that there exists no breach
under Section 6.15(a) and/or (b) above, in detail satisfactory to the
Administrative Lender. 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 Lender
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 Lender to fully effect the foregoing, including, without
limitation, providing the Administrative Lender 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 Lender from time to time.
(ii) Leasehold Property. The Borrower shall use its best efforts after
the acquisition by the Borrower or any of its Subsidiaries of any
leasehold property, to provide the Administrative Lender on behalf of
itself and the Lenders 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 use its best efforts to provide (or to cause
to be provided) all such documents and instruments required by the
Administrative Lender to fully effect the foregoing, including, without
limitation, providing the Administrative Lender with UCC-1's, new
security agreements, mortgages, deeds of trust, Estoppel and Attornment
language, appraisals, surveys, hazard insurance, UCC-11 searches, Tax
and Lien searches, intellectual property
69
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 Lender from time to time.
(iii) Fee Owned Property and Leasehold 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 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. With
respect to leasehold property of the Borrower and its Subsidiaries in
existence on the Closing Date and not subject to a mortgage or deed of
trust on the Closing Date, all such property shall be treated as if such
property were acquired 120 days after the Closing Date in order to
determine compliance with Section 6.15(d)(ii) above.
6.16. Acquisitions, Generally. In connection with any acquisition made
by the Borrower during the term of this Agreement, the Borrower shall with
respect to individual Permitted Acquisitions in excess of $2,000,000 and all
Permitted Acquisitions which in the aggregate exceed $10,000,000, (a) not less
than ten Business Days prior to the proposed acquisition date, deliver to
Administrative Lender (i) a detailed written description of the proposed
Permitted Acquisition in form reasonably acceptable to the Administrative
Lender, a description and location of all fee owned real property, all leasehold
property, all Towers and all other assets (together with all legal descriptions
of all real property (leasehold and fee owned) available at such time), (ii) the
address of any office acquired and (iii) a copy of the purchase agreement,
schedules thereto and all related documentation (unless such schedules or
documentation is 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 10 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
Compliance Certificate computed after giving effect to such acquisition and
borrowings (provided that, in such Compliance Certificate, the Borrower may
certify as to Sections 8.01(a), 8.01(b) and 8.01(d) hereof only, and not
Sections 8.01(c), 8.01(e) and 8.01(f) hereof).
6.17. Year 2000. The Borrower has (a) undertaken a detailed review and
assessment of all areas within its business and
70
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 property date-sensitive functions involving certain dates
prior to and any date after 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 and after January 1, 2000 (that is, be
"Year 2000 Compliant").
ARTICLE VII. INFORMATION COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Available 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
71
consolidated operating budget of the Borrower, the Parent, and its Subsidiaries
for the succeeding fiscal year.
7.03. Compliance Certificates. Within 20 days after the end of each
month (together with the monthly compliance certificate described in Section
7.07(a) hereof), and at the time financial statements are furnished pursuant to
Section 7.01 and Section 7.02, a Compliance Certificate.
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
72
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 (A) continue to
qualify as 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, or (viii) any challenge by
the Internal Revenue Service to the status of Borrower or any Subsidiary of
Borrower as a Qualified REIT Subsidiary, notice 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 Lender
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
73
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.
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
74
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
(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, Tenant Leases and Tower
Construction Advances.
(a) Monthly Compliance Certificate. Within 20 days after the end of each
month during the term of this Agreement (and together with the Compliance
Certificate required by Section 7.03 hereof), the Borrower shall provide the
Administrative Lender and each Lender with compliance certificates certified by
an Authorized Officer regarding (i) compliance by the Borrower with Section 6.15
hereof and (ii) designation of Tower Construction Advances and the related
Towers, the aggregate outstanding amount of Tower Construction Advances and
compliance with Section 8.01(f) hereof, each for the most recently completed
month, substantially in the form of Exhibit C hereto, in sufficient detail, form
and substance reasonably acceptable to the Administrative Lender.
(b) Quarterly Information Regarding Fee Owned Real Property, Ground
Leases and Tenant Leases. The Borrower shall provide the Administrative Lender
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
75
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),
(v) a list of all Non-Conforming Ground Leases on such date (detailing the
reason for non-compliance), together with a detail of all Tower Cash Flow
generated by any Tower on all NonConforming Ground Leases, and any
non-compliance with respect to any requirement set forth in Section 6.15 hereof
or set forth on Schedule 2.16 hereof for any fee owned real Property of the
Borrower and each Subsidiary of the Borrower, and (vi) a list of all Primary
NonConforming Tenant Leases and Secondary Non-Conforming Tenant Leases
(detailing the reason for non-compliance) and all Tenant Lease Revenues
generated by such Primary Non-Conforming Tenant Leases and Secondary
Non-Conforming Tenant Leases, all in form and substance acceptable to the
Administrative Lender. 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(t) hereof.
(c) Annual Information Regarding Tenant Leases. The Borrower shall
provide the Administrative Lender 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 Primary Non-Conforming Tenant Lease or a Secondary
Non-Conforming 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 Lender.
ARTICLE VIII. NEGATIVE COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Available 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) TOTAL LEVERAGE RATIO. The Borrower shall not permit the Total
Leverage Ratio to be more than the following ratios at the end of any
fiscal quarter during the time during the following time periods:
76
Period Ratio
------ -----
From the Closing Date
through September 30, 1998 10.25 to 1.00
From October 1, 1998
through December 31, 1998 9.50 to 1.00
From January 1, 1999
through June 30, 1999 9.00 to 1.00
From July 1, 1999
through March 31, 2000 8.25 to 1.00
From April 1, 2000
through March 31, 2001 7.50 to 1.00
From April 1, 2001
through March 31, 2002 7.00 to 1.00
From April 1, 2002
through March 31, 2003 6.50 to 1.00
From April 1, 2003
and thereafter 6.00 to 1.00
provided however,
(i) that in the event of a failure to meet the ratios required by this
Section 8.01(a), so long as no other Default or Event of Default exists
hereunder, ABRY may, through the Parent, not more than two times during
the term of this Agreement (in addition to those instances in which ABRY
may be required to make such a contribution pursuant to Section 2(b) of
the Capital Contribution Agreement), prior to the delivery by the
Borrower of its Compliance Certificate in accordance with Section 7.03
hereof evidencing such breach, make either (A) an equity capital
contribution or (B) a loan to the Borrower constituting Cure Sub Debt,
or any combination of equity and Cure Sub Debt, in each case to enable
the Borrower to reduce the outstanding principal amount of Advances
hereunder in an amount sufficient to cure the breach under this Section
8.01(a). In the event that the ABRY makes such capital contribution or
loan constituting Cure Sub Debt, the Borrower must reduce the
outstanding Advances hereunder by such amount, and the Borrower may
demonstrate its compliance with the financial covenant in this Section
8.01(a) by calculating such covenant (I) after such contribution or Cure
Sub Debt loan has been made, and (II) after the Obligation has been
reduced by such contribution or such Cure Sub Debt loan. Notwithstanding
anything in this Agreement to the contrary, the second time that ABRY
makes any capital contribution or Cure Sub Debt loan to cure any Event
of Default as a result of
77
a violation of this Section 8.01(a) as permitted above, any such capital
contribution or Cure Sub Debt loan shall be applied in accordance with
the terms of Section 2.05(b) hereof, but shall permanently reduce the
outstanding Obligations by a reduction in the Available Commitment in
accordance with the terms of Section 2.11(c)(i) hereof; and
(ii) notwithstanding anything herein to the contrary, no Advance
constituting a Tower Construction Advance will be included in the Total
Debt calculation to determine compliance with this Section 8.01(a), but
only so long as (A) such Advance remains a Tower Construction Advance,
and (B) there is not included in the calculation of EBITDA for the
purposes of this Section 8.01(a) only, revenue attributable to any new
Tower being constructed with the proceeds of any such Tower Construction
Advance for so long as any such Tower Construction Advance remains
designated as a Tower Construction Advance, it being understood by the
parties hereto that, notwithstanding the use of Tower Construction
Advances to refurbish or replace any existing Tower, revenue
attributable to such refurbished or replacement Tower may not be
included in the calculation of EBITDA to determine compliance with this
Section 8.01(a).
(b) SENIOR LEVERAGE RATIO. The Borrower shall not permit the
Senior 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 the Closing Date
through March 31, 1999 5.25 to 1.00
From April 1, 1999
through March 31, 2000 5.00 to 1.00
From April 1, 2000
through March 31, 2001 4.50 to 1.00
From April 1, 2001
through March 31, 2002 4.00 to 1.00
From April 1, 2002
through March 31, 2003 ` 3.50 to 1.00
From April 1, 2003
and thereafter 3.00 to 1.00
provided however,
78
(i) that in the event of a failure to meet the ratios required by this
Section 8.01(b), so long as no other Default or Event of Default exists
hereunder, ABRY may, through the Parent, not more than two times during
the term of this Agreement (in addition to those instances in which ABRY
may be required to make such a contribution pursuant to Section 2(b) of
the Capital Contribution Agreement), prior to the delivery by the
Borrower of its Compliance Certificate in accordance with Section 7.03
hereof evidencing such breach, make either (A) an equity capital
contribution or (B) a loan to the Borrower constituting Cure Sub Debt,
or any combination of equity and Cure Sub Debt, in each case to enable
the Borrower to reduce the outstanding principal amount of Advances
hereunder in an amount sufficient to cure the breach under this Section
8.01(b). In the event that the ABRY makes such capital contribution or
loan constituting Cure Sub Debt, the Borrower must reduce the
outstanding Advances hereunder by such amount, and the Borrower may
demonstrate its compliance with the financial covenant in this Section
8.01(b) by calculating such covenant (I) after such contribution or Cure
Sub Debt loan has been made, and (II) after the Obligation has been
reduced by such contribution or such Cure Sub Debt loan. Notwithstanding
anything in this Agreement to the contrary, the second time that ABRY
makes any capital contribution or Cure Sub Debt loan to cure any Event
of Default as a result of a violation of this Section 8.01(b) as
permitted above, any such capital contribution or Cure Sub Debt loan
shall be applied in accordance with the terms of Section 2.05(b) hereof,
but shall permanently reduce the outstanding Obligations by a reduction
in the Available Commitment in accordance with the terms of Section
2.11(c)(ii) hereof; and
(ii) notwithstanding anything herein to the contrary, no Advance
constituting a Tower Construction Advance will be included in the Senior
Debt calculation to determine compliance with this Section 8.01(b), but
only so long as (A) such Advance remains a Tower Construction Advance,
and (B) there is not included in the calculation of EBITDA for the
purposes of this Section 8.01(b) only, revenue attributable to any new
Tower being constructed with the proceeds of any such Tower Construction
Advance for so long as any such Tower Construction Advance remains
designated as a Tower Construction Advance, it being understood by the
parties hereto that, notwithstanding the use of Tower Construction
Advances to refurbish or replace any existing Tower, revenue
attributable to such refurbished or replacement Tower may not be
included in the calculation of EBITDA to determine compliance with this
Section 8.01(b).
(c) INTEREST COVERAGE RATIO. The Borrower shall not permit, at the end
of any fiscal quarter, the ratio of (a) EBITDA for the preceding twelve
month period to (b) the difference between (i) Interest Expense for the
preceding twelve month
79
period minus (ii) accrued interest expense to be paid in-kind by the
Borrower, the Parent or any Subsidiary of the Borrower, to be less than
the following ratios during the following time periods:
Period Ratio
------ -----
From the Closing Date
through December 31, 1998 1.75 to 1.00
From January 1, 1999
through December 31, 1999 2.00 to 1.00
From January 1, 2000
and thereafter 2.25 to 1.00
(d) 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 1.25 to 1.00.
(e) FIXED CHARGE COVERAGE RATIO. 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 for the most recently
completed twelve month period, to be less than 1.10 to 1.00.
(f) CAPITAL EXPENDITURES FOR TOWER CONSTRUCTION. On any date of
determination, the Borrower shall not permit the aggregate outstanding
Tower Construction Advances to exceed $30,000,000, provided that,
notwithstanding the foregoing, such $30,000,000 limitation shall be
reduced on such dates and by such percentage of $30,000,000, as is set
forth below:
Percentage of
Date of Payment $30,000,000.00
--------------- --------------
June 30, 2000 3.33%
September 30, 2000 3.33%
December 31, 2000 3.34%
March 31, 2001 3.75%
June 30, 2001 3.75%
September 30, 2001 3.75%
December 31, 2001 3.75%
March 31, 2002 5.00%
June 30, 2002 5.00%
September 30, 2002 5.00%
December 31, 2002 5.00%
March 31, 2003 5.00%
June 30, 2003 5.00%
September 30, 2003 5.00%
December 31, 2003 5.00%
March 31, 2004 5.00%
80
June 30, 2004 5.00%
September 30, 2004 5.00%
December 31, 2004 5.00%
March 31, 2005 3.75%
June 30, 2005 3.75%
September 30, 2005 3.75%
December 31, 2005 3.75%
Proceeds of all Tower Construction Advances used for preconstruction and
preacquisition expenses of the Borrower, including without limitation,
survey fees, environmental audit fees, and other expenses typically
expended by a buyer in connection with the acquisition of
telecommunications towers, shall not exceed $1,500,000 in the aggregate.
Proceeds of all other Tower Construction Advances shall be used for
acquisition costs, hard costs of construction, and any other expenses of
the Borrower associated with constructing a tower.
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, incur or
otherwise become or remain obligated in respect of, or permit to be outstanding,
or suffer to exist any Debt for Borrowed Money, 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, with respect to the Parent, Subordinated Debt owed
to ABRY up to a maximum aggregate amount of $15,000,000, which may be refinanced
(provided no Default or Event of Default exists or would result from the
incurrence thereof) with proceeds of one or more issuances (and refinances
thereof) of subordinated debt or equity which is on terms and conditions and
pursuant to documentation satisfactory to the SuperMajority Lenders);
(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 up to the maximum aggregate amount at any one
time outstanding of $250,000 for both the Borrower and the Parent, which Debt
may not be subject to an interest rate in excess of 13% per annum;
(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
81
exceed $350,000 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, with respect to the Parent, the Borrower and the
Subsidiaries of the Borrower, Debt owed to each other; provided that all Debt
owed by the Borrower or any of its Subsidiaries to the Parent shall be
Subordinated Debt;
(h) 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, 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;
(i) 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, the amount of such Debt which
shall not exceed, together with the amount of seller Debt described on Schedule
8.02 hereto, the aggregate amount of Letters of Credit which are issued
hereunder in connection with such Permitted Acquisitions; and
(j) provided that, no Default or Event of Default exists or would result
from the incurrence thereof, Debt for Borrowed Money of the Parent incurred
pursuant to the Parent Senior Notes.
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. The Borrower
shall not, and shall not permit Parent or any Subsidiary of the Borrower to,
agree with any other Person that it shall not create, assume, incur, permit or
suffer to exist or to be created, assumed, incurred or
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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 (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 Lender, (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) that
are 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) So long as there exists no Default or Event of Default at the time
such Investment is made, Investments not in excess of $200,000 at any one time
outstanding made by the Borrower in the form of advances to executive employees
for the purchase by any such employees of residential property, but only to the
extent that ABRY has made a capital contribution to the Parent, and the Parent
has made a capital contribution to the Borrower, each in the form of equity, and
provided further that no such capital contribution
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may be used by the Borrower in connection with required capital contributions
for Permitted Acquisitions, General and Administrative Expenses and curing
Defaults and Event of Defaults under this Agreement and the Loan Papers; 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, (c) the Capital
Contribution Agreement, (d) any provision in any Ground Lease provision that is
set forth on Exhibit K hereto or (e) any material provision of the Stockholders
Agreement in any manner material and adverse to the Lenders or which would
result in a breach of any provision of the Loan Papers. 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 that would result in (a) an
increase in any principal, interest, fees, or other amounts payable under the
Subordinated Debt or the Parent Senior Notes (including without limitation a
waiver or action that results in the waiver of any payment default under the
Subordinated Debt or the Parent Senior Notes), (b) a change in any date fixed
for any payment of principal, interest, fees, or other amounts payable under the
Subordinated Debt or the Parent Senior Notes (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 or the Parent Senior
Notes 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 or the Parent Senior Notes, (e) a change in any covenant, term
or provision in the Subordinated Debt or the Parent Senior Notes which would
result in such term or provision being more restrictive than the terms of this
Agreement and the Loan Papers, or (f) a change in any term or provision of the
Subordinated Debt or the Parent Senior Notes, or other document or instrument in
connection therewith that could have, in any material respect, an adverse effect
on the interests of the Lenders.
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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:
(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 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);
(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 or otherwise
consented to by the Lenders in accordance with the terms of this Agreement, the
Administrative Lender 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
Lender, and (iii) take such other action as the Administrative Lender deems
necessary or appropriate in connection with such transaction and in furtherance
of the effectuation thereof.
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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.
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) the Borrower may pay ABRY (A) a management fee in an amount not
to exceed in the aggregate for any fiscal year of the Borrower, $75,000,
plus (B) up to $25,000 in the aggregate for any fiscal year of the
Borrower to reimburse ABRY for out of pocket expenses incurred for such
year,
(ii) (A) 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) 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) 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
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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 a distribution to the Parent to enable
the Parent to repurchase capital stock of the Parent owned by any deceased
Shareholder (and the Parent is hereby permitted to do so) (A) to the
extent that the Borrower was the beneficiary of a key-man life insurance
policy on such Shareholder and (B) in an amount not to exceed net proceeds
received by the Borrower from such key-man life insurance,
(vi) at such time as the Total Leverage Ratio is less than 5.00 to
1.00, the Borrower may make a distribution to the Parent to enable the
Parent to repurchase capital stock of the Parent owned by any Shareholder
that was an officer of the Borrower that has resigned or has been
terminated (and the Parent is hereby permitted to do so) (A) in accordance
with the terms of that certain Second Amended and Restated Subscription
and Stockholders Agreement, among the Parent and the Shareholders, dated
as of May 16, 1996 (the "Stockholders Agreement") and (B) in an amount not
to exceed any equity contribution made by ABRY to the Parent and by the
Parent to the Borrower for such purpose,
(vii) 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,
(viii) within 130 days after the end of each fiscal year of
Borrower ending on or after March 31, 2000, to the extent there exists
Excess Cash Flow not required to reduce the Available Commitment pursuant
to Section 2.11(c)(iv) hereof, the Borrower may make an annual
distribution to the Parent in the amount of such Excess Cash Flow, and
(ix) until September 1, 2003, the Parent may make 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.
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 pursuant to the Capital Contribution Agreement, the agreements listed on
Schedule 8.09 hereto and except for Restricted Payments permitted to be paid
under Section 8.08
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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.
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, except as specifically permitted
pursuant to Section 8.02(c) hereof, provided that, if there exists no Default or
Event of Default before and immediately after giving effect to such issuance
(provided that, in accordance with the provisions of Sections 8.01(a) and
8.01(b) hereof, a Default or Event of Default may exist prior to such issuance),
the Parent may issue Capital Stock of the Parent to any Person.
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.
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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) the
incurrence of indebtedness, (b) the granting of Liens, (c) the making or
granting of Guarantees, (d) the payment of dividends or Distributions, (e) the
purchase, redemption or retirement of any Capital Stock, (f) the making of loans
or advances, (g) transfers or sales of property or assets (including Capital
Stock) by the Parent, the Borrower or any of its Subsidiaries, (h) the making of
Investments, (i) any change of control or management, or (j) any amendment of,
or waiver or consent to, any provision of this Agreement or any other Loan
Paper.
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;
(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 Sections 6.15(a) and (b) hereof, and such
failure shall not be remedied within thirty days following the earlier of the
Borrower's knowledge of such failure or notice fro 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
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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;
(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 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
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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 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); or (ii) 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;
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(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) Any of the following shall have occurred: (i) There shall exist any
breach of the Capital Contribution Agreement after the expiration of any
applicable grace period, or (ii) ABRY or the Parent shall fail at any time to
perform any obligation it has under the Capital Contribution Agreement, after
the expiration of any applicable grace period, or (iii) ABRY, the Parent or the
Borrower denies the validity or enforceability of the Capital Contribution
Agreement or any material provision thereof;
(q) Any of the following shall have occurred: (i) the Shareholders in
existence on the Closing Date shall, at any time, own and control less than 51%
of the outstanding voting stock of the Parent; 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;
(r) 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;
(s) 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)("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);
(t) With respect to Parent, Borrower or any Subsidiary of the Borrower,
(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)
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Borrower or any Subsidiary of Borrower shall fail to maintain its status as a
Qualified REIT Subsidiary;
(u) A "Change of Control" as that term is defined in the Parent Senior
Notes Documentation shall occur; and
(v) 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).
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 become due and payable concurrently therewith,
without any action by Administrative Lender 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 Lender may at its election, 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 Available Commitment;
(c) Reduce any claim of Administrative Lender and Lenders to judgment;
(d) Demand (and the Borrower shall pay to Administrative Lender)
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 Lender 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.
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9.03. Cumulative Rights. All Rights available to Administrative Lender 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 Lender 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 Lender 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 Lender 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 Lender 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 Lender or any Lender. Should any
covenant of any Obligor fail to be performed in accordance with the terms of the
Loan Papers, Administrative Lender 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 Lender nor any Lender
assumes, and shall not ever have, except by express written consent of
Administrative Lender 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 Lender 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 Lender or any Lender
any Rights to exercise control over the affairs and/or management of any
Obligor, the power of Administrative Lender and each Lender being limited to the
Rights to exercise the remedies provided in this Article; provided, however,
-------- -------
that if Administrative Lender or any Lender becomes 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.
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ARTICLE X. THE ADMINISTRATIVE LENDER
10.01. Authorization and Action. Each Lender hereby appoints and
authorizes Administrative Lender to take such action as Administrative Lender on
its behalf and to exercise such powers under this Agreement and the other Loan
Papers as are delegated to the Administrative Lender 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 Lender 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
Administrative Lender shall not be required to take any action which exposes
Administrative Lender to personal liability or which is contrary to any Loan
Papers or applicable Law. Administrative Lender 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 Lender by the Borrower for the Ratable or individual
account of any Lender. Functions of the Administrative Lender are administerial
in nature and in no event shall the Administrative Lender have a fiduciary or
trustee relationship in respect of any Lender by reason of this Agreement or any
Loan Paper.
10.02. Administrative Lender's Reliance, Etc. Neither Administrative
Lender, 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 Lender (a) may
treat the payee of any Note as the holder thereof until Administrative Lender
receives written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to Administrative Lender; (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
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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 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. NationsBank, N.A. and Affiliates. With respect to its Available
Commitment, its Advances, and any Loan Papers, NationsBank, N.A. has the same
Rights under this Agreement as any other Lender and may exercise the same as
though it were not Administrative Lender. NationsBank, 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 NationsBank,
N.A. were not Administrative Lender 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 Lender 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 Lender 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
Lender, 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 Lender in any way relating to or arising out of
any Loan Papers or any action taken or omitted by Administrative Lender
thereunder, including any negligence of Administrative Lender; provided,
however, that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from Administrative Lender's gross
negligence or willful misconduct. Without limitation of the foregoing, Lenders
shall reimburse Administrative Lender, Pro Rata, promptly upon demand for any
out-of-pocket expenses (including reasonable attorneys' fees) incurred by
Administrative Lender in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether
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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 Lender. Administrative Lender 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 Lender, if it is a Lender). Upon any such
resignation, Majority Lenders shall have the right to appoint a successor
Administrative Lender. If no successor Administrative Lender shall have been so
appointed and shall have accepted such appointment within thirty days after the
retiring Administrative Lender's giving of notice of resignation, then the
retiring Administrative Lender may, on behalf of Lenders, appoint a successor
Administrative Lender, 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 Lender hereunder by a successor Administrative
Lender, such successor Administrative Lender shall thereupon succeed to and
become vested with all the Rights and duties of the retiring Administrative
Lender, and the retiring Administrative Lender shall be discharged from its
duties and obligations under the Loan Papers, provided that if the retiring or
removed Administrative Lender is unable to appoint a successor Administrative
Lender, Administrative Lender shall, after the expiration of a sixty day period
from the date of notice, be relieved of all obligations as Administrative Lender
hereunder. Notwithstanding any Administrative Lender'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
Lender 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 Lender 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
result of action or failure to take action shall not) unless in writing and
signed by all of Lenders and Administrative Lender, (a) increase the Available
Commitment (except as specifically permitted by Section 2.18 hereof), (b) reduce
any principal, interest, fees, or other amounts
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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 releases contemplated hereby and by the Loan Papers, (e) change the meaning
of "Specified Percentage" or the number of Lenders required to take any action
hereunder, (f) change the definitions of "Available Commitment", "Unavailable
Commitment", "Maturity Date", "Majority Lenders", or "Letter of Credit
Commitment", (g) amend Section 2 of the Capital Contribution Agreement or (h)
amend Section 2.18 hereof, Sections 2.11(a), (b) and (c) hereof, the last
sentence of Section 8.01(a)(i) hereof, the last sentence of Section 8.01(b)(i)
hereof, or this Section 11.01. No amendment, waiver, or consent shall affect the
Rights or duties of Administrative Lender under any Loan Papers, unless it is in
writing and signed by Administrative Lender in addition to the requisite number
of Lenders.
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 Lender, 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
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(ii) If to Administrative Lender:
NationsBank, N.A.
NationsBank Plaza
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxx
Vice President
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
to Administrative Lender pursuant to Article II shall be effective when
received. The Borrower agrees that Administrative Lender 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 Lender and
Lenders for
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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. 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 Lender.
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 Lender 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 Lender and (iv) no such assignment is for an amount less than
$5,000,000 (and, if such assignment is a partial assignment, no Lender shall
hold less than $5,000,000 immediately after giving effect to any assignment).
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 Lender. Within five Business Days
after Administrative Lender receives notice of any such assignment, the Borrower
shall execute and deliver to Administrative Lender, 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 Specified Percentages of the Available
Commitment. 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
(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,
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(v) Obligor, Administrative Lender, and other Lenders shall continue to deal
solely and directly with such Lender in connection with its Rights and
obligations under the Loan Papers and (vi) no such participation is for an
amount less than $5,000,000.
(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 (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, (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 NationsBank, 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 NationsBank, 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
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
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under this Agreement and the other Loan Papers, whether or not Administrative
Lender 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.
11.07. Costs, Expenses, and Taxes.
(a) The Borrower agrees to pay on demand (i) all costs and expenses of
Administrative Lender 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 (including reasonable
attorneys' fees and expenses) of Administrative Lender in connection with any
interpretation, grant and perfection of any Lien, modification, amendment,
waiver, release of any Loan Papers, restructuring or work-out and (iii) all
costs and expenses (including reasonable attorneys' fees and expenses) of
Administrative Lender 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 payable or determined to be payable in connection with any payment
hereunder (other than Taxes on the overall net income of Administrative Lender
or any Lender or franchise Taxes or Taxes on capital or capital receipts of
Administrative Lender or any Lender), or the execution, delivery, or recordation
of any Loan Papers, and agrees to save Administrative Lender 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
Lender 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 Lender 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 Lender or any Lender pursuant to this
sentence), Administrative Lender 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
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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. 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 execution of this Agreement, termination
of the Available Commitment, repayment of the Obligations, satisfaction of each
agreement securing or assuring the Obligations and termination of this Agreement
and each other Loan Paper.
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
Lender 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 Lender 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 Lender 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 Lender 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,
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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.
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 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 LENDER 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.
===============================================================================
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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104
IN WITNESS WHEREOF, this Third Amended and Restated Credit Agreement is
executed as of the date first set forth above.
THE BORROWER:
PINNACLE TOWERS INC.
By:----------------------------------------
Its:---------------------------------------
ADMINISTRATIVE LENDER:
NATIONSBANK, N.A., as Administrative Lender
-------------------------------------------
By: Xxxxxxx X. Xxxx
Its: Vice President
XXXXXXX SACHS CREDIT PARTNERS, L.P., as
Syndication Agent
-------------------------------------------
By:----------------------------------------
Its:---------------------------------------
LENDERS:
Specified Percentage: 31.6666% NATIONSBANK, N.A., individually as a Lender
Address:
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn.: Xxxxxxx X. Xxxx -------------------------------------------
Telephone: (000) 000-0000 By: Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000 Its: Vice President
105
Specified Percentage: 21.6666% XXXXXXX XXXXX CREDIT PARTNERS L.P.
Address:
00 Xxxxxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 -------------------------------------------
Attn.: Xxxx Xxxx By:----------------------------------------
Telephone: (000) 000-0000 Its:---------------------------------------
Telecopy: (000) 000-0000
Specified Percentage: 10.0000% BANKBOSTON, N.A.
Address:
Media & Communications Department
000 Xxxxxxx Xxxxxx, 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000 -------------------------------------------
Attn.: Xx. Xxxxx Xxxxx By:----------------------------------------
Its:---------------------------------------
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Specified Percentage: 16.6666% SOCIETE GENERALE, NEW YORK BRANCH
Address:
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 -------------------------------------------
Attn.: Xx. Xxxx Xxxxx-Xxxx By:----------------------------------------
Its:---------------------------------------
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Specified Percentage: 10.0000% BANK OF AMERICA
Address:
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 -------------------------------------------
Attn.: Xxxx Xxxxx By:----------------------------------------
Its:---------------------------------------
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
106
Specified Percentage: 10.0000% UNION BANK OF CALIFORNIA, N.A.
Address: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 -------------------------------------------
Attn.: Xxxxxxxx Xxxxxxxx By:----------------------------------------
Its:---------------------------------------
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
107
