EXHIBIT 10.7
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$450,000,000
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
Among
PINNACLE TOWERS INC.
And
NATIONSBANK, N.A.
as Administrative Agent
and
LENDERS
as defined herein
Dated as of June 25, 1999
With
BANC OF AMERICA SECURITIES LLC
as Sole Lead Arranger and Sole Book Manager
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PINNACLE TOWERS INC.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS
1.01. Definitions...................................................................................... 1
1.02. Accounting and Other Terms....................................................................... 26
ARTICLE II. THE LOAN FACILITIES
2.01. The Loans........................................................................................ 27
2.02. Making Advances.................................................................................. 28
2.03. Evidence of Debt for Borrowed Money.............................................................. 29
2.04. Optional Prepayments............................................................................. 30
2.05. Mandatory Prepayments............................................................................ 31
2.06. Repayment........................................................................................ 32
2.07. Interest......................................................................................... 33
2.08. Default Interest................................................................................. 34
2.09. Continuation and Conversion Elections............................................................ 34
2.10. Fees and the Fee Letter.......................................................................... 35
2.11. Reduction of Commitments......................................................................... 36
2.12. Funding Losses................................................................................... 38
2.13. Computations and Manner of Payments.............................................................. 38
2.14. Yield Protection; Changed Circumstances.......................................................... 40
2.15. Use of Proceeds.................................................................................. 43
2.16. Collateral and Collateral Call................................................................... 43
2.17. Replacement of a Lender.......................................................................... 44
2.18. Conditions Precedent to the Increase of the Revolver B Commitment................................ 44
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit.................................................................... 46
3.02. Letters of Credit Fee............................................................................ 47
3.03. Reimbursement Obligations........................................................................ 47
3.04. Lenders' Obligations............................................................................. 49
3.05. Administrative Agent's Obligations............................................................... 49
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to Closing, Effectiveness of this Agreement and the Refunding Advance....... 50
4.02. Conditions Precedent to All Advances and Letters of Credit....................................... 52
4.03. Conditions Precedent to Advances for Permitted Acquisitions, Except the Motorola Acquisition..... 53
4.04. Conditions Precedent to Motorola Acquisition and the Making of any Advance with Respect Thereto.. 53
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties................................................................... 54
5.02. Survival of Representations and Warranties....................................................... 63
ARTICLE VI. GENERAL COVENANTS
6.01. Preservation of Existence and Similar Matters.................................................... 63
6.02. Business; Compliance with Law and Material Agreements............................................ 63
6.03. Maintenance of Properties........................................................................ 63
6.04. Accounting Methods and Financial Records......................................................... 64
6.05. Insurance........................................................................................ 64
6.06. Payment of Taxes and Claims...................................................................... 64
6.07. Visits and Inspections........................................................................... 64
6.08. Payment of Debt for Borrowed Money............................................................... 64
6.09. Use of Proceeds.................................................................................. 64
6.10. Indemnity........................................................................................ 65
6.11. Environmental Law Compliance..................................................................... 65
6.12. Interest Rate Protection Agreements.............................................................. 66
6.13. Issuance and Pledge of Capital Stock of the Borrower............................................. 66
6.14. Continued Status as a Real Estate Investment Trust; Prohibited Transactions...................... 67
6.15. Tenant Leases, Ground Leases and Fee Owned Property.............................................. 67
6.16. Acquisitions, Generally.......................................................................... 69
6.17. Year 2000........................................................................................ 69
6.18. Motorola Acquisition............................................................................. 70
6.19. Notice by the Borrower........................................................................... 70
6.20. Syndication of the Loans......................................................................... 70
6.21. Additional Equity and/or Subordinated Debt....................................................... 70
ARTICLE VII. INFORMATION COVENANTS
7.01. Quarterly Financial Statements and Information................................................... 71
7.02. Annual Financial Statements and Information; Certificate of No Default........................... 71
7.03. Compliance Certificates.......................................................................... 71
7.04. Copies of Other Reports and Notices.............................................................. 71
7.05. Notice of Litigation, Default and Other Matters.................................................. 73
7.06. ERISA Reporting Requirements..................................................................... 73
7.07. Fee Owned Property, Ground Leases and Tenant Leases.............................................. 74
ARTICLE VIII. NEGATIVE COVENANTS
8.01. Financial Covenants.............................................................................. 75
8.02. Debt for Borrowed Money.......................................................................... 77
8.03. Liens............................................................................................ 79
8.04. Investments...................................................................................... 79
8.05. Amendment and Waiver............................................................................. 80
8.06. Liquidation, Disposition or Acquisition of Assets, Merger, New Subsidiaries...................... 81
8.07. Guaranties; Contingent Liabilities............................................................... 81
8.08. Restricted Payments.............................................................................. 82
8.09. Affiliate Transactions........................................................................... 83
8.10. Compliance with ERISA............................................................................ 83
8.11. Capital Stock.................................................................................... 84
8.12. Sale and Leaseback............................................................................... 84
8.13. Sale or Discount of Receivables.................................................................. 84
8.14. Limitation on Restrictive Agreements............................................................. 84
ARTICLE IX. EVENTS OF DEFAULT
9.01. Events of Default................................................................................ 84
9.02. Remedies upon Default............................................................................ 88
9.03. Cumulative Rights................................................................................ 89
9.04. Waivers 89
9.05. Performance by Administrative Agent or any Lender................................................ 89
9.06. Expenditures..................................................................................... 89
9.07. Control 89
ARTICLE X. THE ADMINISTRATIVE AGENT
10.01. Authorization and Action......................................................................... 90
10.02. Administrative Agent's Reliance, Etc............................................................. 90
10.03. NationsBank, N.A. and Affiliates................................................................. 90
10.04. Lender Credit Decision........................................................................... 91
10.05. Indemnification by Lenders....................................................................... 91
10.06. Successor Administrative Agent................................................................... 91
ARTICLE XI. MISCELLANEOUS
11.01. Amendments and Waivers........................................................................... 92
11.02. Notices.......................................................................................... 92
11.03. Parties in Interest.............................................................................. 94
11.04. Assignments and Participations................................................................... 94
11.05. Sharing of Payments.............................................................................. 95
11.06. Right of Set-off................................................................................. 96
11.07. Costs, Expenses, and Taxes....................................................................... 96
11.08. Rate Provision................................................................................... 97
11.09. Severability..................................................................................... 97
11.10. Exceptions to Covenants.......................................................................... 98
11.11. Counterparts..................................................................................... 98
11.12. GOVERNING LAW; WAIVER OF JURY TRIAL.............................................................. 98
11.13. ENTIRE AGREEMENT................................................................................. 98
11.14. Amendment, Restatement, Extension, Renewal and Increase.......................................... 98
Table of Schedules and Exhibits
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Schedules
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Schedule 2.16 - Items required with respect to Each Fee Owned Real Property of the Borrower and its Subsidiaries
Schedule 5.01(a) - Jurisdictions of Qualification, Ownership and Capital Structure - Borrower
Schedule 5.01(f) - FAA Non-Compliance as of the Closing Date
Schedule 5.01(h) - Existing Litigation
Schedule 5.01(w) - Tenant Leases in existence on the Closing Date
Schedule 5.01(x) - Ground Leases in existence on the Closing Date
Schedule 5.01(y) - Owned Real Property in existence on the Closing Date
Schedule 8.02 - Existing Debt and Liabilities
Schedule 8.03 - Existing Liens
Schedule 8.04 - Existing Investments
Schedule 8.09 - Existing Affiliate Transactions
Schedule 11.02 - Lender Addresses
Exhibits
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Exhibit A-1 - Form of Revolver A Note
Exhibit A-2 - Form of Revolver B Note
Exhibit A-3 - Form of Term Loan A Note
Exhibit A-4 - Form of Term Loan B Note
Exhibit B - Form of Security Agreement (Borrower)
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Borrowing Notice
Exhibit E - Form of Conversion/Continuation Notice
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Guaranty of Subsidiaries
Exhibit H - Form of Security Agreement (Subsidiary)
Exhibit I - Form of Subordination Agreement
Exhibit J - Form of Borrower Pledge Agreement
Exhibit K - Form of Certain Ground Lease Provisions
Exhibit L - Form of Guaranty of Parent
Exhibit M - Form of Parent Pledge Agreement
Exhibit N - Form of Estoppel and Attornment Language
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$450,000,000
PINNACLE TOWERS INC.
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDED AND RESTATED CREDIT AGREEMENT is dated as of June 25,
1999, among Pinnacle Towers Inc., a Delaware corporation (the "Borrower"), the
Lenders (as defined below), NationsBank, N.A., as a Lender and Administrative
Agent (the "Administrative Agent"). Banc of America Securities LLC acted as
Sole Lead Arranger and Sole Book Manager.
BACKGROUND.
WHEREAS, Borrower entered into that certain Third Amended and Restated
Credit Agreement with Administrative Agent and Lenders, dated as of May 29, 1998
(the "Original Credit Agreement") which provided for loan facilities in the
initial amount of $250,000,000;
WHEREAS, Borrower and Administrative Agent have agreed to restructure,
extend, renew and restate such indebtedness under the Original Credit Agreement
as set forth herein to provide for three separate facilities 1) a seven year
reducing revolver facility in the initial amount of $75,000,000, 2) a seven year
reducing revolver acquisition facility in the initial amount of $75,000,000,
which may under certain circumstances (but the Lenders are under no commitment
to) increase to $125,000,000, 3) a seven year delayed draw acquisition term loan
in the amount of $125,00,000 (which must be drawn no later than six months after
closing), and 4) an eight year term loan in the amount of $175,00,000 (which
must be fully drawn on the date of closing), and to make certain other agreed to
changes to the existing credit facility among the parties thereto.
AGREEMENT.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
1.01. Definitions. As used in this Agreement, the following terms have
the respective meanings indicated below (such meanings to be applicable equally
to both the singular and plural forms of such terms):
"Acquisition Debt" shall have the meaning ascribed thereto in the
Indenture.
1
"Acquisition Agreement" means that certain Agreement For Purchase and Sale
of Assets by and between Motorola and the Borrower, in the form of the draft of
such agreement delivered to the Administrative Agent on June 24, 1999, and in
any executed copy of such Agreement For Purchase and Sale of Assets, so long as
any such executed copy is in such form delivered, with only minor and immaterial
changes, or such form with material changes that are consented to by the
Majority Lenders.
"Advance" means an advance made by a Lender to the Borrower pursuant to
Section 2.01 hereof which may be a Revolver A Advance, a Revolver B Advance, a
Term Loan A Advance or a Term Loan B Advance (and may either be Base Advance or
a LIBOR Advance, and which such Advance may also be a Refinancing Advance.
"Affiliate" means a Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled By or is Under Common Control with
another Person.
"Administrative Agent" means NationsBank, N.A. in its capacity as
Administrative Agent hereunder, or any successor Administrative Agent appointed
pursuant to Section 10.06 hereof.
"Agreement" means this Fourth Amended and Restated Credit Agreement, as
hereafter amended, modified, increased, extended, restated or supplemented from
time to time.
"Annualized EBITDA" means, (a) with respect to Compliance Certificates
delivered in connection with Section 7.03 hereof, the product of (i) EBITDA for
the Parent, the Borrower and its Subsidiaries on a consolidated basis, for the
most recently completed fiscal quarter immediately preceding the date of
determination times (ii) four and (b) with respect to pro-forma Compliance
Certificates delivered in connection with Permitted Acquisitions delivered
pursuant to Section 6.16 hereof, the product of (i) EBITDA for the Parent, the
Borrower and its Subsidiaries on a consolidated basis, for the most recently
completed fiscal quarter immediately preceding the date of determination with
respect to which the Borrower has financial statements prepared, times (ii)
four.
"Applicable Law" means (a) in respect of any Person, all provisions of Laws
applicable to such Person, and all orders and decrees of all courts and
arbitrators in proceedings or actions to which the Person in question is a party
and (b) in respect of contracts made or performed in the State of Texas,
"Applicable Law" shall also mean the laws of the United States of America,
including, without limiting the foregoing, 12 USC Sections 85 and 86, as amended
to the date hereof and as the same may be amended at any time and from time to
time hereafter, and any 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.
2
"Applicable Margin" means, (a) with respect to Advances outstanding under
the Term Loan A and the Revolving Loans, 2.75% per annum for LIBOR Advances and
1.50% per annum for Base Advances and (b) with respect to Advances under the
Term Loan B, 3.000% per annum for LIBOR Advances and 1.750% for Base Advances,
provided that, after the date which the Administrative Agent and the Lenders
receive a Compliance Certificate required to be delivered in accordance with the
terms of Section 7.01 hereof for the fiscal quarter ended June 30, 2000, then,
if there exists no Default or Event of Default, the Applicable Margin will be
the following per annum percentages applicable in the following situations:
Term Loan A and
Revolving Loans Term Loan B
Applicability Percentage Percentage
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(i) If the Leverage 2.750% 3.000%
Ratio is equal to or
greater than 6.00 to 1.00
(ii) If the Leverage 2.500% 3.000%
Ratio is equal to or
greater than 5.50 to 1.00
but is less than
6.00 to 1.00
(iii) If the Leverage 2.250% 3.000%
Ratio is equal to or
greater than 5.00 to 1.00
but is less than
5.50 to 1.00
(iv) If the Leverage 2.000% 3.000%
Ratio is equal to or
greater than 4.50 to 1.00
but is less than
5.00 to 1.00
(v) If the Leverage 1.750% 2.750%
Ratio is equal to or
greater than 4.00 to 1.00
but is less than
4.50 to 1.00
3
(vi) If the Leverage 1.500% 2.750%
Ratio is equal to or
greater than 4.00 to 1.00
but is less than
3.50 to 1.00
(vii) If the Leverage 1.250% 2.750%
Ratio is less than
3.00 to 1.00
In each case in the above grid, the Applicable Margin for Base Advances shall be
a per annum rate equal to 1.25% less than the Applicable Margin for the
applicable LIBOR Advance. The Applicable Margin payable by the Borrower shall be
(a) after the Administrative Agent has received all financial information
required by Section 7.01 hereof for the fiscal quarter ended June 30, 2000,
reduced or increased as applicable and as set forth in the table above, on a
quarterly basis according to the performance of the Parent, Borrower and
Subsidiaries of Borrower as tested by the Leverage Ratio and (b) further
increased as set forth in Section 6.15(c) hereof. Except as set forth in the
last sentence hereof, any such increase or reduction in the Applicable Margin
provided for herein shall be effective three Business Days after receipt by
Administrative Agent of the applicable financial statements and corresponding
Compliance Certificate. If financial statements and a Compliance Certificate of
the Borrower setting forth the Leverage Ratio are not received by the
Administrative Agent by the date required pursuant to Article VII hereof, the
Applicable Margin shall be determined as if the Leverage Ratio exceeds 6.00 to
1.00, until such time as such financial statements and Compliance Certificate
are received. For the final quarter of any fiscal year of the Borrower, the
Borrower may provide the unaudited financial statements of the Borrower, subject
only to year-end adjustments, for the purpose of adjusting the Applicable
Margin.
"Applicable Specified Percentage" means with respect to any Lender, in the
case of the Revolver A Loan, such Lender's Revolver A Specified Percentage, in
the case of the Revolver B Loan, such Lender's Revolver B Specified Percentage,
in the case of the Term Loan A, such Lender's Term Loan A Specified Percentage
and in the case of the Term Loan B, such Lender's Term Loan B Specified
Percentage.
"Application" means any stand-by letter of credit application delivered to
Administrative Agent for or in connection with any stand-by Letter of Credit
pursuant to Article III hereof, in Administrative Agent's standard form for
stand-by letters of credit.
"Art. 1D" has the meaning specified in the definition herein of "Applicable
Law".
"Art. 1H" has the meaning specified in the definition herein of "Applicable
Law".
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by Administrative Agent, in
the form of Exhibit F hereto.
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4
"Auditor" means Price Waterhouse L.L.P., or other independent certified
public accountants selected by the Borrower and acceptable to Administrative
Agent.
"Authorized Officer" means, with respect to the Borrower and its
Subsidiaries, the President, Chief Executive Officer, Chief Financial Officer or
the Controller of the Borrower.
"Bank Affiliate" means the holding company of any Lender, or any wholly-
owned direct or indirect subsidiary of such holding company or of such Lender.
"BAS" means Banc of America Securities LLC.
"Base Advance" means an Advance bearing interest at the Base Rate.
"Base Rate" means a per annum interest rate equal to the lesser of (a) the
Highest Lawful Rate, and (b) the sum of the Applicable Margin plus the higher of
(i) a fluctuating rate per annum as shall be in effect from time to time
announced or published by 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, 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,
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modified, renewed or extended from time to time.
"Borrowing" means a borrowing of the same Type made on the same day.
"Borrowing Notice" has the meaning set forth in Section 2.02(a) hereof.
"Bridge Debt" has the meaning ascribed thereto in Section 8.02(c)(ii)
hereof.
"Business Day" means a day of the year on which banks are not required or
authorized to close in Dallas, Texas or Sarasota, Florida, or, if with respect
to any notice, payment or calculation related to a LIBOR Advance, in New York,
New York, Dallas, Texas, Sarasota, Florida or London, England.
"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.
5
"Change of Control" means the occurrence of one of more of the following
events: (i) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all or substantially all of the assets of the
Parent and its Subsidiaries, taken as a whole, to any Person or group of related
Persons, as defined in Section 13(d) of the Securities Exchange Act of 1934 (a
"Group"), other than Permitted Holders, (ii) any Person or Group (other than
Permitted Holders) shall become the owner, directly or indirectly, beneficially
or of record, of shares representing 30% or more of the aggregate voting power
represented by the issued and outstanding voting stock of the Parent or any
successor to all or substantially all of its assets; or (iii) the first day on
which a majority of the members of the board of directors of the Parent are not
Continuing Directors.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
reference to any provision of the Code shall include all successor provisions
thereto.
"Collateral" has the meaning ascribed thereto in Section 2.16 hereof.
"Commitment Fee" means the fee described in Section 2.10(b) hereof.
"Commitment Letter" means that certain Commitment Letter, dated June 23,
1999, executed among the Borrower, the Administrative Agent and BAS.
"Commitments" means the Revolver A Commitment and the Revolver B
Commitment.
"Communications Act" means, collectively, the Communications Act of 1934
and the rules and regulations promulgated thereunder, as from time to time in
effect.
"Compliance Certificate" means a certificate of an Authorized Officer in
the form of Exhibit C hereto, (a) certifying that such individual has no
---------
knowledge that a Default or Event of Default has occurred and is continuing, or
if a Default or Event of Default has occurred and is continuing, a statement as
to the nature thereof and the action being taken or proposed to be taken with
respect thereto, (b) setting forth detailed calculations with respect to the
covenants described in Section 8.01 hereof, (c) certifying to the appropriate
Applicable Margins and (d) setting forth a description of all acquisitions
consummated in the previous fiscal quarter with respect to which the Borrower
was not required to inform the Administrative Agent, describing the name of the
acquisition, the purchase price, whether such acquisition was an asset or
Capital Stock acquisition and the cash flow related to the towers acquired.
"Consequential Loss" with respect to (a) the Borrower's payment of all or
any portion of the then-outstanding principal amount of a LIBOR Advance on a day
other than the last day of the related Interest Period, including, without
limitation, payments made as a result of the acceleration of the maturity of a
Note, (b) subject to Administrative Agents' prior consent, a LIBOR Advance made
on a date other than the date on which the Advance is to be made according to
Section 2.02(a) or Section 2.09 hereof to the extent such Advance is made on
such other date at the request of the Borrower, or (c) any of the circumstances
specified in Section
6
2.04 hereof on which a Consequential Loss may be incurred, means any loss, cost
or expense incurred by any Lender as a result of the timing of the payment or
Advance or in liquidating, redepositing, redeploying or reinvesting the
principal amount so paid or affected by the timing of the Advance or the
circumstances described in Section 2.04 hereof, which amount shall be the sum of
(i) the interest that, but for the payment or timing of Advance, such Lender
would have earned in respect of that principal amount, reduced, if such Lender
is able to redeposit, redeploy, or reinvest the principal amount, by the
interest earned by such Lender as a result of redepositing, redeploying or
reinvesting the principal amount plus (ii) any expense or penalty incurred by
such Lender by reason of liquidating, redepositing, redeploying or reinvesting
the principal amount. Each determination by each Lender of any Consequential
Loss is, in the absence of manifest error, presumptive evidence of the validity
of such claim.
"Consolidated Leverage Ratio" means the ratio, at the end of the accounting
period with respect to which such determination is made, of (a) Total Debt
(exclusive of Debt for Borrowed Money among the Parent, the Borrower and the
wholly owned Subsidiaries of the Borrower), to (b) Annualized EBITDA, provided
that, the calculation of Consolidated Leverage Ratio shall exclude revenues or
charges attributable to Properties of the Borrower and its Subsidiaries sold
during the calculation period as if such sale occurred on the first day of such
period and shall include revenues and charges attributable to Properties of the
Borrower and its Subsidiaries purchased during such period as if such purchase
occurred on the first day of such period.
"Contingent Liability" means, as to any Person, any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt or obligation of any other Person in any manner, whether
directly or indirectly, including without limitation any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt, (b)
to purchase Property or services for the purpose of assuring the owner of such
Debt of its payment, or (c) to maintain the solvency, working capital, equity,
cash flow, fixed charge or other coverage ratio, or any other financial
condition of the primary obligor so as to enable the primary obligor to pay any
Debt or to comply with any agreement relating to any Debt or obligation, but
excluding endorsement of checks, drafts and other instruments in the ordinary
course of business.
"Continue," "Continuation" and "Continued" each refer to the continuation
pursuant to Section 2.09 hereof of a LIBOR Advance from one Interest Period to
the next Interest Period.
"Continuing Directors" means, as of any date of determination, any member
of the board of directors of the Parent who (i) was a member of such board of
directors on the date hereof or (ii) was nominated for election or elected to
such board of directors by any of the Permitted Holders or with the approval of
a majority of the Continuing Directors who were members of such board at the
time of such nomination or election.
"Control" or "Controlled By" or "Under Common Control" mean possession,
direct or indirect, of power to direct or cause the direction of management or
policies (whether through ownership of voting securities, by contract or
otherwise); provided that, in any event (a) any Person which beneficially owns
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(i) 10% or more (in number of votes) of the securities having
7
ordinary voting power for the election of directors of a corporation shall be
conclusively presumed to control such corporation and (ii) 10% or more of the
interest in capital or profits of a partnership shall be conclusively presumed
to control such partnership, and (b) no Person shall be deemed to be an
Affiliate of a corporation solely by reason of his being an officer or director
of such corporation.
"Controlled Group" means, as to any Person, all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
which are under common control with such Person and which, together with such
Person, are treated as a single employer under Section 414(b), (c), (m) or (o)
of the Code.
"Conversion or Continuance Notice" has the meaning set forth in Section
2.09(b) hereof.
"Debt" means all obligations, contingent or otherwise, which in accordance
with GAAP are required to be classified on the balance sheet as liabilities, and
in any event including (without duplication) (a) Capital Leases, (b) Contingent
Liabilities that are required to be disclosed and quantified in notes to
consolidated financial statements in accordance with GAAP, and (c) liabilities
secured by any Lien on any Property, regardless of whether such secured
liability is with or without recourse.
"Debt for Borrowed Money" means, as to any Person, at any date, without
duplication, (a) all obligations of such Person for borrowed money, letters of
credit (or applications for letters of credit) 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 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
8
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 and (c) is not subject to
any acceleration right.
"EBITDA" means, for the Parent, the Borrower and its Subsidiaries, for any
period of determination, the sum of (a) net income for such period, excluding
non-cash income, plus (b) amortization and depreciation for such period, plus
(c) non-cash charges (minus non-cash income) and other extraordinary items for
such period to the extent not included in net income, plus (d) Interest Expense
for such period, including Rental Obligations under Synthetic Leases (whether or
not treated as Interest Expense), plus (e) Income Tax Expense for the Parent,
the Borrower and its Subsidiaries for such period, plus (f) an adjustment to net
income (without duplication) for such period to account for the effect of
treating all acquisitions completed in such period as if such acquisitions had
been completed on the first day of such period, plus (g) an adjustment to net
income for such period to record (i) an increase in revenue related to all new
leases executed or acquired in the period as if such leases were effective as of
the beginning of such period and (ii) a decrease in revenue related to all
terminated or canceled leases during the period as if such leases were
terminated or canceled as of the beginning of such period, provided that,
determinations of adjustments to EBITDA with respect to the assets acquired by
the Borrower in connection with the Motorola Acquisition shall be calculated in
a manner reasonably acceptable to the Administrative Agent and Majority Lenders.
"Eligible Assignee" means any 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; (d) central bank of any
country which is a member of the Organization for Economic Cooperation and
Development; and (e) any other Person approved by the Administrative Agent,
which approval will not be unreasonably withheld.
"Environmental Claim" means any written notice by any Tribunal alleging
liability for damage to the environment, or by any Person alleging liability for
personal injury (including sickness, disease or death), resulting from or based
upon (a) the presence or release (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
9
Subsidiaries, or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S)9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. (S)1801 et seq.), the Resource
Conservation and Recovery Act (42 X.X.X (X)0000 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. (S)1251 et seq.), the Clean Air Act (42 U.S.C.
(S)7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S)2601 et seq.),
and the Occupational Safety and Health Act (29 U.S.C. (S)651 et seq.) ("OSHA"),
as such laws have been or hereafter may be amended or supplemented, and any and
all analogous future federal, or present or future state or local, Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations issued thereunder, as from time to time
in effect.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of the Borrower or any Obligor, or is under
common control with 67 Borrower or any Obligor, within the meaning of Section
414(c) of the Code, and the regulations and rulings issued thereunder.
"ERISA Event" means (a) a reportable event, within the meaning of Section
4043 of ERISA, unless the 30-day notice requirement with respect thereto has
been waived by the PBGC, (b) the issuance by the administrator of any Plan of a
notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA), (c) the withdrawal by the Parent, the Borrower, any
Subsidiary of the Borrower, or an ERISA Affiliate from a Multiple Employer Plan
during a Plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA, (d) the failure by the Borrower, any Subsidiary of
the Borrower, or any ERISA Affiliate to make a payment to a Plan required under
Section 302 of ERISA, (e) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA, or (f) the
institution by the PBGC of proceedings to terminate a Plan, pursuant to Section
4042 of ERISA, or the occurrence of any event or condition that constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, a Plan.
"Estoppel and Attornment Language" means estoppel and attornment language
substantially in the form of Exhibit N hereto, or such other language as may be
---------
approved in writing by Administrative Agent.
"Event of Default" means any of the events specified in Section 9.01 of
this Agreement, provided there has been satisfied any requirement in connection
therewith for the giving of notice, lapse of time, or happening of any further
condition.
"Excess Cash Flow" means, for any fiscal year of the Borrower, EBITDA for
such year minus the sum of (a) Fixed Charges for such year (excluding interest
paid or payable, at the
10
option of the Borrower, in-kind), plus (b) (without duplication) all voluntary
principal prepayments on the Obligations pursuant to Section 2.04 hereof during
such period.
"FAA" means the Federal Aviation Administration, or any governmental agency
succeeding to the functions thereof.
"FCC" means the Federal Communications Commission, or any governmental
agency succeeding to the functions thereof.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of Dallas, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such date on such
transactions received by Administrative Agent from three federal funds brokers
of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter and Agreement, dated June 23,
1999, between the Borrower and the Administrative Agent, as such letter may be
amended, modified, substituted, replaced, or increased from time to time, and
such other fee letters as may be executed among the parties from time to time,
as such letters may be amended, modified, substituted, replaced, or increased
from time to time.
"Final Maturity Date" means June 30, 2007, or such earlier date on which
all outstanding Advances under the Term Loan B and all other outstanding
Obligations are due and payable (including, without limitation, whether by
acceleration, installment payment, mandatory or voluntary commitment reduction
or mandatory or voluntary prepayment).
"First Maturity Date" means June 30, 2006, or such earlier date on which
all outstanding Advances under the Revolving Loans and the Term Loan A,
respectively, are due and payable (including, without limitation, whether by
acceleration, installment payment, scheduled reduction of either of the
Commitments to zero or mandatory or voluntary commitment reduction of either of
the Commitments to zero or mandatory or voluntary prepayment).
"Fixed Charges" means, for any specified period for the Parent, the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) required
or scheduled principal and interest payments with respect to Debt for Borrowed
Money for such period, plus (b) required or scheduled principal payments with
respect to seller notes executed by the Borrower in connection with Permitted
Acquisitions to the extent permitted by Section 8.02 hereof, plus (c) accrued or
paid Earn-Out Liabilities, plus (d) required or scheduled payments with respect
to Capital Leases for such period, plus (e) cash distributions made by the
Borrower and the Parent in accordance with the terms of Section 8.08(b)(iii)
hereof during such period (without duplication), plus (f) Capital Expenditures
for such period, plus, (e) (without duplication), cash Income Tax Expense of the
Parent, the Borrower and its Subsidiaries with respect to such period.
11
"GAAP" means generally accepted accounting principles applied on a
consistent basis. Application on a consistent basis shall mean that the
accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period, except for new
developments or statements promulgated by the Financial Accounting Standards
Board and other changes in accounting methods permitted by generally accepted
accounting principles.
"Ground Lease" means those certain leases for real property or rooftops
entered into or acquired by the Borrower or any Subsidiary of the Borrower, for
the lease of real property (including rooftops) which constitute a Tower or upon
which is located a Tower (or which will constitute a Tower or upon which will be
located a Tower) for the purpose of maintaining Tenant Leases, including,
without limitation, those Ground Leases described on Schedule 5.01(x) hereto.
----------------
"Guarantors" means the Parent and each Subsidiary of the Borrower existing
on the Closing Date or formed or acquired from time to time thereafter.
"Guaranty" means a guaranty executed by any Person of the obligations of
another Person, or any agreement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes liable upon, the obligation of any other Person, or agrees
to maintain the net worth or working capital or other financial condition of any
other Person, or otherwise assures any creditor or such other Person against
loss, including, without limitation, any comfort letter, or take-or-pay contract
and shall include without limitation, the contingent liability of such Person in
connection with any application for a letter of credit.
"Hazardous Materials" means all materials subject to any Environmental Law,
including without limitation materials listed in 49 C.F.R. (S) 172.101,
Hazardous Substances, explosive or radioactive materials, hazardous or toxic
wastes or substances, petroleum or petroleum distillates, asbestos, or material
containing asbestos.
"Hazardous Substances" means hazardous waste as defined in the Clean Water
Act, 33 U.S.C. (S) 1251 et seq., the Comprehensive Environmental Response
Compensation and Liability Act as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. (S) 9601 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. (S) 6901 et seq., and the Toxic Substances Control Act,
15 U.S.C. (S) 2601 et seq.
12
"Highest Lawful Rate" means at the particular time in question the maximum
rate of interest which, under Applicable Law, Administrative Agent is then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, such Lender is permitted to charge on the Obligations
shall change after the date hereof, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each change in the Highest Lawful Rate without notice
to the Borrower. For purposes of determining the Highest Lawful Rate under
Applicable Law, the applicable rate ceiling shall be (a) the indicated rate
ceiling described in and computed in accordance with the provisions of Art. lH;
or (b) either the annualized ceiling or quarterly ceiling computed pursuant to
.008 of Art. 1D; provided, however, that at any time the indicated rate ceiling,
-------- -------
the annualized ceiling or the quarterly ceiling, as applicable, shall be less
than 18% per annum or more than 24% per annum, the provisions of Sections
.009(a) and .009(b) of said Art. lD shall control for purposes of such
determination, as applicable.
"Income Tax Expense" means the aggregate Taxes accrued by the Parent, the
Borrower and its Subsidiaries for the relevant period of determination, plus any
cash Distributions made by the Borrower for the purposes of satisfying any Tax
liabilities in accordance with Section 8.08 hereof.
"Indenture" means that certain Indenture, dated March 20, 1998, between the
Parent and The Bank of New York, as trustee, in connection with the Parent
Senior Notes.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities within the meaning of Section 4001(a)(18) of ERISA.
"Interest Expense" means, for the Parent, the Borrower and its Subsidiaries
on a consolidated basis, all interest expense and commitment fees incurred with
respect to Total Debt whether accrued or paid, all fees or expenses with respect
to letters of credit, bankers' acceptances or similar facilities, excluding
interest actually paid-in-kind.
"Interest Period" means, with respect to any LIBOR Advance, the period
beginning on the date the Advance is made or continued as a LIBOR Advance and
ending one, two, three or six months thereafter (as the Borrower shall select),
provided, however, that:
-------- -------
(a) the Borrower may not select any Interest Period that ends after
any principal repayment date unless, after giving effect to such selection,
the aggregate principal amount of LIBOR Advances having Interest Periods
that end on or prior to such 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
13
(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 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 or Section 2.18 hereof, for so long as each is owed any portion of the
Obligation or is obligated under any portion of the Commitments.
"Lending Office" means, with respect to each Lender, its branch or
affiliate, (a) initially, the office of each Lender, branch or affiliate
identified as such on Schedule 11.02 hereto, and (b) subsequently, such other
--------------
office of each Lender, branch or affiliate as each Lender may designate to the
Borrower and Administrative Agent as the office from which the Advances of each
Lender will be made and maintained and for the account of which all payments of
principal and interest 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)
(i) until the earlier of October 31, 1999 and the consummation of the Motorola
Acquisition, $60,000,000, and (ii) on and after the earlier of October 31, 1999
and the consummation of the Motorola Acquisition, $40,000,000 and (b) the
remainder of the Revolver B Commitment minus the sum of all outstanding Revolver
B Advances.
"Letters of Credit" means the irrevocable standby letters of credit issued
by Administrative Agent under and pursuant to Article III hereof, and under or
pursuant to Article
14
III of the Original Credit Agreement, as each may be amended, modified,
substituted, increased, replaced, renewed or extended from time to time.
"Leverage Ratio" means the ratio, at the end of the accounting period with
respect to which such determination is made, of (a) Senior Debt of the Borrower
and its Subsidiaries (exclusive of Debt owed to each other), to (b) Annualized
EBITDA (excluding EBITDA attributable to the Parent), provided that, the
calculation of the Leverage Ratio shall exclude revenues or charges attributable
to Properties of the Borrower and its Subsidiaries sold during the calculation
period as if such sale occurred on the first day of such period and shall
include revenues and charges attributable to Properties of the Borrower and its
Subsidiaries purchased during such period as if such purchase occurred on the
first day of such period.
"LIBOR Advance" means an Advance bearing interest at the LIBOR Rate.
"LIBOR Lending Office" means, with respect to each Lender, the office
designated as its "LIBOR Lending Office" below its name on Schedule 11.02
--------------
hereto, or such other office of Lender or any of its affiliates hereafter
designated by notice to the Borrower and Administrative Agent.
"LIBOR Rate" means a simple per annum interest rate equal to the lesser of
(a) the Highest Lawful Rate, and (b) sum of the Applicable Margin plus the LIBOR
Rate Basis. The LIBOR Rate shall, with respect to LIBOR Advances subject to
reserve or deposit requirements under any Law, be subject to premiums assessed
therefor by each Lender, which are payable directly to each Lender in an amount
sufficient to compensate such Lender for any increased cost or reduced rate of
return attributable to such reserve deposit requirements. Any calculation by a
Lender of such increased cost or reduced rate of return which is in reasonable
detail and submitted to Borrower shall, in the absence of manifest error, be
presumptive evidence of the validity of such claim. Once determined for any
LIBOR Advance, the LIBOR Rate shall remain unchanged during the applicable
Interest Period.
"LIBOR Rate Basis" means, for any LIBOR Advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at 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
15
(including without limitation the FCC and the FAA) necessary for such Person to
own, build, maintain, or operate its business or Property.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien, or
charge of any kind, including without limitation any agreement to give or not to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement or other similar form of public notice under the
Laws of any jurisdiction (except for the filing of a financing statement or
notice in connection with an (a) operating lease or (b) the true consignment of
goods to the Borrower or any Subsidiary of the Borrower as consignee).
"Litigation" means any proceeding, claim, lawsuit, arbitration, and/or
investigation conducted by or before any Tribunal or arbitrator, including
without limitation proceedings, claims, lawsuits, and/or investigations under or
pursuant to any environmental, occupational, safety and health, antitrust,
unfair competition, securities, Tax, or other Law, or under or pursuant to any
contract, agreement, or other instrument.
"Loan" means, as applicable in the context used, the Revolver A Loan, the
Revolver B Loan, the Term Loan A or the Term Loan B, and "Loans" means all or
any combination of the Revolver A Loan, the Revolver B Loan, the Term Loan A and
the Term Loan B, as applicable in the context used.
"Loan Papers" means this Agreement, the Notes, the Security Agreements,
Borrower Pledge Agreement, the Subsidiary Guaranties, the Parent Guaranty, the
Parent Pledge Agreement, the Fee Letters, the portions of the Commitment Letter
which specifically state that they shall survive the consummation of this credit
facility, financing statements, mortgages, deeds of trust, any Interest Rate
Protection Agreement and related documents entered into by the Borrower with any
Lender or Bank Affiliate, all Letters of Credit, all Applications and all other
agreements between the Borrower, the Parent or any Subsidiary of the Borrower
and the Administrative Agent related to any Letter of Credit, letter agreements,
assignment of leases, other fee letters, Assignment and Acceptances, post-
closing letters, and all other documents, instruments, agreements, or
certificates executed or delivered from time to time by any Person in connection
with this Agreement or as security for the Obligations hereunder, granting
Collateral or otherwise, as each such agreement may be amended, modified,
substituted, replaced or extended from time to time.
"Majority Lenders" means any combination of Lenders having at least 51.00%
of the aggregate amount of the sum of (a) outstanding Commitments plus (b)
outstanding Term Loan A Advances, plus (c) outstanding Term Loan B Advances,
provided, however, that (i) if either of the Commitments have been terminated,
then (a) above will be the amount of the outstanding Advances under the Revolver
A Loan and/or the Revolver B Loan, as appropriate.
"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
16
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.
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, a Lender is permitted to charge on the Obligations.
"Motorola" means Motorola, Inc., a Delaware corporation.
"Motorola Acquisition" means that certain acquisition by the Borrower of
certain tower assets of Motorola in accordance with the Acquisition Agreement.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower, any Subsidiary of the Borrower, or
any ERISA Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an obligation
to make contributions, such plan being maintained pursuant to one or more
collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower, any Subsidiary of the Borrower, or any ERISA Affiliate and at least
one Person other than the Borrower, any Subsidiary of the Borrower, and any
ERISA Affiliate, or (b) was so maintained and in respect of which the Borrower,
any Subsidiary of the Borrower, or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Net Proceeds" means the gross cash proceeds received by the Parent, the
Borrower or any Subsidiary of the Borrower in connection with or as a result of
(a) any asset sale not in the ordinary course of business, minus (so long as
each of the following are estimated in good faith by the management of the
Borrower and certified to the Lenders in reasonable detail by an Authorized
Officer) (i) distributions to be made, if any, by the Borrower to the Parent and
by the Parent to the Shareholders, each as permitted by Section 8.08 hereof,
plus to the extent the Borrower or such Subsidiary has any actual Tax liability,
actual Taxes payable with respect to such asset sale in an amount equal to the
Tax liability of the Parent, the Borrower or any Subsidiary of the Borrower in
respect of such sale (taking into account the distribution to the Parent and by
the Parent to the Shareholders, and all Tax benefits of each of the parties),
(ii) 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.
17
"Note" means each Note of the Borrower evidencing Advances hereunder,
substantially in the forms of Exhibits X-0, X-0, X-0 and A-4 hereto, together
------------------------------
with any extension, renewal or amendment thereof, or substitution therefor.
"Obligations" means all present and future obligations, indebtedness and
liabilities, and all renewals and extensions of all or any part thereof, of the
Borrower and each Obligor to Lenders and Administrative Agent arising from, by
virtue of, or pursuant to this Agreement, any of the other Loan Papers and any
and all renewals and extensions thereof or any part thereof, or future
amendments thereto, all interest accruing on all or any part thereof and
reasonable attorneys' fees incurred by the Administrative Agent for the
preparation of this Agreement and consummation of this credit facility,
execution of waivers, amendments and consents, and in connection with the
enforcement or the collection of all or any part thereof, and reasonable
attorneys' fees incurred by the Lenders in connection with the enforcement or
the collection of all or any part of the Obligations during the continuance of
an Event of Default, in each case whether such obligations, indebtedness and
liabilities are direct, indirect, fixed, contingent, joint, several or joint and
several. Without limiting the generality of the foregoing, "Obligations"
includes all amounts which would be owed by the Borrower, each other Obligor and
any other Person (other than Administrative Agent or Lenders) to Administrative
Agent or Lenders under any Loan Paper, but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower, any other Obligor
or any other Person (including all such amounts which would become due or would
be secured but for the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding of the Borrower, any other
Obligor or any other Person under any Debtor Relief Law).
"Obligor" means (a) the Borrower, (b) the Parent, (c) each Subsidiary of
the Borrower, (d) each other Person liable for performance of any of the
Obligations and (e) each other Person the Property of which secures the
performance of any of the Obligations.
"Oral Tenant Leases" means those Tenant Leases which are oral and not
subject to any written agreement.
"Original Credit Agreement" has the meaning ascribed thereto in the
preamble hereof.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
agency or entity performing substantially the same functions.
"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
18
Exhibit M hereto, as such agreement may be amended, modified, renewed or
---------
extended from time to time.
"Parent Senior Notes" means those certain 10% Senior Discount Notes due
2008 aggregating $325,000,000.00 amount in face value, unsecured, non cash
interest bearing (payment in kind only) for the first five years and issued by
the Parent pursuant to the Parent Senior Notes Documentation.
"Parent Senior Notes Documentation" means that certain Indenture and all
other written agreements and documentation relating to the Parent Senior Notes
in existence on the Closing Date or as permitted to be amended by Section 8.05
hereof.
"Permitted Acquisition" means any acquisition of assets related to the
communications tower or rooftop business, including, without limitation, (i) the
development, construction or acquisition of towers or rooftop space and related
real estate, ground leases, and tower, rooftop, access and/or guy wire
easements, or (ii) acquisitions of 100% of the Capital Stock of any Person
owning or leasing towers or rooftop space, or (iii) acquisitions of leasehold
rights on Towers for the purpose of subleasing, in each case by the Borrower or
any Subsidiary of the Borrower, which, after giving effect to the proposed
acquisition and any equity investments and borrowings related thereto, would not
cause a Default or Event of Default under Section 8.01(a) or 8.01(b) hereof or
any other term or provision of this Agreement and the Loan Papers.
"Permitted Holders" means as of the date of determination (i) Xxxxxx
Xxxxxx and his spouse, and any of his respective estates, lineal descendants
(including adoptive children), heirs, executors, personal representatives,
administrators and trusts for any of their benefit and (ii) any other Person,
the majority of which voting stock is directly or indirectly owned by any Person
described in clause (i) above.
"Permitted Liens" means, as applied to any Person:
(a) any Lien in favor of the Lenders to secure the Obligations hereunder;
(b) (i) Liens on real estate for real estate Taxes not yet delinquent, (ii)
Liens created by lease agreements, statute or common law to secure the payments
of rental amounts and other sums not yet due thereunder, (iii) Liens on
leasehold interests created by the lessor in favor of any mortgagee of the
leased premises, and (iv) Liens for Taxes, assessments, governmental 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;
19
(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.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Stock" means all of the Capital Stock of the Subsidiaries of the
Borrower and all of the Capital Stock of the Borrower.
"Pro Forma Debt Service" means, on any date of determination, for the
Parent, the Borrower and its Subsidiaries, the sum of (a) cash Interest Expense
plus (b) required or scheduled principal payments with respect to Debt for
Borrowed Money, each for the four fiscal quarters immediately succeeding any
date of determination, provided that, with respect to any 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.
20
"Pro Rata" means, as to any Lender, in accordance with its percentage of
the aggregate amount of outstanding Advances under the applicable Loan or all
the Loans; provided, however, that if no such Advances are outstanding, such
-------- -------
term means in accordance with such Lender's Applicable Specified Percentage or
Total Specified Percentage, as applicable.
"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 Applicable
Specified Percentage or Total Specified Percentage, in each case applicable in
the context used.
"Refinancing Advance" means any Advance which is (a) used to pay the
principal amount (or any portion thereof) of an Advance at the end of its
Interest Period, or (b) a conversion of all or any portion of an outstanding
Base Advance to a LIBOR Advance, which, in each case after giving effect to such
application, does not result in an increase in the aggregate amount of
outstanding Advances.
"REIT Conversion" means the occurrence of any one of the following events:
(a) the election by the Parent to no longer maintain its REIT Status, (b) the
election by the Borrower or any Subsidiary of the Borrower to no longer maintain
its Qualified REIT Subsidiary status, (c) the occurrence of any event which
results in the Parent no longer having REIT Status, or (d) the occurrence of any
event which results in the Borrower or any Subsidiary of the Borrower no longer
qualifying as a Qualified REIT Subsidiary.
"REIT Status" means, with respect to any Person, such Person's status as a
real estate investment trust, as defined in Section 856(a) of the Code, that
satisfies the conditions and limitations set forth in Sections 856(b) and 856(c)
of the Code.
"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
Commitments have 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
21
interest thereon, payable by the Parent, the Borrower or any of its
Subsidiaries to any Affiliate of the Parent, the Borrower, or to any other
Person other than an unrelated third party (or the establishment of any sinking
fund or otherwise the setting aside of any funds with respect thereto); and (c)
any cash payment of interest, principal, fees or penalties, on any Debt for
Borrowed Money or Subordinated Debt, or the establishment of any sinking fund or
otherwise the setting aside of any funds with respect thereto.
"Revolver Advances" means Advances made under the Revolver A Loan and the
Revolver B Loan.
"Revolver A Advances" means any advance made under the Revolver A Loan.
"Revolver B Advances" means any advance made under the Revolver B Loan.
"Revolver A Commitment" means $75,000,000, as such amount may be reduced
from time to time or terminated pursuant to Sections 2.06, 2.11 or 9.02 hereof.
"Revolver B Commitment" means $75,000,000 minus the sum of (a) the undrawn
face amount of all Letters of Credit plus (b) the sum of all reimbursement
obligations under Article III hereof, in each case as such amount may be
increased prior to June 30, 2001 in accordance with the terms of Section 2.18
hereof, and as such amount may be reduced from time to time or terminated
pursuant to Sections 2.06, 2.11 or 9.02 hereof.
"Revolver A Loan" means the loan made by a Lender pursuant to Section
2.01(a) of this Agreement.
"Revolver B Loan" means the loan made by a Lender pursuant to Section
2.01(b) of this Agreement.
"Revolver A Note" means each Note of the Borrower evidencing Advances under
the Revolver A Loan hereunder, substantially in the form of Exhibit A-1 hereto,
-----------
together in each case, with any extension, renewal or amendment thereof, or
substitution therefor.
"Revolver B Note" means each Note of the Borrower evidencing Advances under
the Revolver B Loan hereunder, substantially in the form of Exhibit A-2 hereto,
-----------
together in each case, with any extension, renewal or amendment thereof, or
substitution therefor.
"Revolver A Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on the signature pages hereof designated as its
Revolver A Specified Percentage, or as adjusted or specified (i) in any
Assignment and Acceptance or (ii) in any amendment to this Agreement.
"Revolver B Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on the signature pages hereof designated as its
Revolver B Specified Percentage, or as adjusted or specified (i) in any
Assignment and Acceptance or (ii) in any amendment to this Agreement.
22
"Revolving Loans" means the Revolver A Loan and the Revolver B Loan.
"Rights" means rights, remedies, powers, and privileges.
"Second Parent Issuance" has the meaning ascribed thereto in Section
8.02(c)(i) hereof.
"Second Parent Issuance Documentation" means any indenture and all other
written agreements and documentation relating to the Second Parent Issuance to
be entered into in accordance with the terms of Section 8.02(c) hereof, as such
documentation is permitted to be amended by Section 8.05 hereof.
"Security Agreements" means (a) the Security Agreement, duly executed by
the Borrower and Parent in substantially the form of Exhibit B hereto,
---------
appropriately completed, and (b) each Security Agreement, duly executed by each
of the Borrower's Subsidiaries, in substantially the form of Exhibit H hereto,
---------
appropriately completed, in each case as amended, modified, substituted,
replaced or extended from time to time.
"Senior Debt" means, on any date of determination, the difference between
Total Debt minus Debt of the Parent included in the definition of Total Debt.
"Shareholder" or "Shareholders" means, on any date of determination, the
shareholders of the Parent.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, other than a Multiple Employer Plan of the Borrower.
"Solvent" means, with respect to any Person, that on such date (a) the fair
value of the Property of such Person is greater than the total amount of
liabilities, including without limitation Contingent Liabilities of such Person,
(b) the present fair salable value of the assets of such Person on a going
concern basis is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's Property would constitute an unreasonably small capital.
"Special Counsel" means the law firm of Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C.,
Dallas, Texas, or such other individual or firm acting as special counsel to
Administrative Agent, as designated by Administrative Agent from time to time.
"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.
---------
23
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) 50% or more of:
(a) the outstanding capital stock having voting power to elect a
majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency),
(b) the interest in the capital or profits of such partnership or
joint venture, or
(c) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by such Person, by such Person
and one or more of its Subsidiaries or by one or more of such Person's
Subsidiaries.
"Subsidiary Guaranty" means the Guaranty, executed by each Subsidiary of
the Borrower, guarantying payment and performance of the Obligations,
substantially in the form of Exhibit G attached hereto, as such agreement may be
---------
amended, modified, renewed or extended from time to time.
"Synthetic Lease" means any lease entered into in connection with the lease
or acquisition of fixed assets which is treated under GAAP as an operating lease
but for Tax purposes as a capital lease.
"Taxes" means all taxes, assessments, imposts, fees, or other charges at
any time imposed by any Laws or Tribunal.
"Tenant Lease Revenue" means, with respect to each Tenant Lease for the
most recently completed calendar month, all revenues generated by such Tenant
Lease for such month.
"Tenant Leases" means each of the leases of space on any Tower of the
Borrower or any Subsidiary of the Borrower now existing or hereafter created or
acquired, including, without limitation, those leases listed on Schedule 5.01(w)
----------------
hereto.
"Term Loan A Advance" means the initial advance and any of the Refinancing
Advances made under the Term Loan A.
"Term Loan B Advance" means the initial advance and any of the Refinancing
Advances made under the Term Loan B.
"Term Loan A" means the term loan made by the Lenders pursuant to Section
2.01(c) of this Agreement.
"Term Loan B" means the term loan made by the Lenders pursuant to Section
2.01(d) of this Agreement.
24
"Term Loan A Initial Advance" has the meaning set forth in Section 2.01(c)
hereof.
"Term Loan B Initial Advance" has the meaning set forth in Section 2.01(d)
hereof.
"Term Loan A Note" means each Note of the Borrower evidencing Term Loan A
Advances hereunder, substantially in the form of Exhibit A-3 hereto with respect
-----------
to Term Loan A Advances made under the Term Loan A, together with any extension,
renewal or amendment thereof, or substitution therefor.
"Term Loan B Note" means each Note of the Borrower evidencing Term Loan B
Advances hereunder, substantially in the form of Exhibit A-4 hereto with respect
-----------
to Term Loan B Advances made under the Term Loan B, together with any extension,
renewal or amendment thereof, or substitution therefor.
"Term Loan A Specified Percentage" means, as to any Lender, (a) prior to
the initial Term Loan A Advance, the percentage indicated beside its name on the
signature pages hereof designated as its Term Loan A Specified Percentage, or as
adjusted or specified (i) in any Assignment and Acceptance or (ii) in any
amendment to this Agreement, and (b) after the initial Term Loan A Advance, the
percentage of the outstanding portion of the Term Loan A held by such Lender on
any date of determination (after giving effect to assignments in accordance with
the terms of Section 11.04 hereof).
"Term Loan B Specified Percentage" means, as to any Lender, (a) prior to
the initial Term Loan B Advance, the percentage indicated beside its name on the
signature pages hereof designated as its Term Loan B Specified Percentage, or as
adjusted or specified (i) in any Assignment and Acceptance or (ii) in any
amendment to this Agreement, and (b) after the initial Term Loan B Advance, the
percentage of the outstanding portion of the Term Loan B held by such Lender on
any date of determination (after giving effect to assignments in accordance with
the terms of Section 11.04 hereof).
"Total Debt" means all Debt for Borrowed Money of the Borrower, the Parent
and any Subsidiary of the Borrower which would be shown on a balance sheet in
accordance with GAAP, including, without limitation, (a) Capital Lease
obligations, (b) obligations to pay the deferred purchase price of property and
services (but excluding trade payables that are less than 90 days old and any
thereof that are being contested in good faith), (c) Debt of any other Person
secured by a Lien on the property of the Borrower and the Parent or any
Subsidiary of the Borrower and the Parent, (d) Contingent Liabilities, and (e)
Withdrawal Liability.
"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
25
executed or acquired 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.
"Tribunal" means any state, commonwealth, federal, foreign, territorial, or
other court or government body, subdivision, agency, department, commission,
board, bureau, or instrumentality of a governmental body.
"Type" refers to the distinction between Advances bearing interest at the
Base Rate and LIBOR Rate.
"UCC" means the Uniform Commercial Code as adopted in the State of Texas on
the Closing Date.
"Unavailable Commitment" means (a) prior to June 30, 2001, $50,000,000 (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 Revolver B Commitment in
accordance with the terms of Section 2.18 hereof), and (b) on and after June 30,
2001, $0.00.
"Withdrawal Liability" has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
1.02. Accounting and Other Terms. All accounting terms used in this
Agreement which are not otherwise defined herein shall be construed in
accordance with GAAP on a consolidated basis for the Parent, the Borrower and
its Subsidiaries, unless otherwise expressly stated herein. References herein to
one gender shall be deemed to include all other genders. Except where the
context otherwise requires, (a) definitions imparting the singular shall include
the plural and vice versa and (b) all references to time are deemed to refer to
Dallas time.
ARTICLE II. THE LOAN FACILITIES
2.01. The Loans.
(a) The Revolver A Loan. Each Lender severally agrees, on the terms
and subject to the conditions hereinafter set forth, to make Advances to
the Borrower on a Business Day during the period from the Closing Date to
the First Maturity Date, in an aggregate principal amount not to exceed at
any time outstanding such Lender's Revolver A Specified Percentage of the
Revolver A Commitment. Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow the Revolver A
Advances; provided, however, that at no time shall the sum of all
-------- -------
outstanding Revolver A Advances exceed the Revolver A Commitment.
26
(b) The Revolver B Loan. Each Lender severally agrees, on the terms
and subject to the conditions hereinafter set forth, to make Advances to
the Borrower on a Business Day during the period from the Closing Date to
the First Maturity Date, in an aggregate principal amount not to exceed at
any time outstanding such Lender's Revolver B Specified Percentage of the
Revolver B Commitment. Subject to the terms and conditions of this
Agreement, the Borrower may borrow, repay and reborrow the Revolver B
Advances; provided, however, that at no time shall the sum of all
-------- -------
outstanding Revolver B Advances exceed the Revolver B Commitment.
(c) Term Loan A. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make a Term Loan A
available to the Borrower on the Closing Date in an aggregate principal
amount equal to such Lender's Term Loan A Specified Percentage of
$125,000,000. The Term Loan A must be borrowed in one initial Advance only
(the "Term Loan A Initial Advance"), which such Term Loan A Initial Advance
must be made on the Closing Date or at any time after the Closing Date but
prior to December 31, 1999. If the Borrower has not borrowed the Term Loan
A Initial Advance prior to December 31,1999, the obligations of the Lenders
to make the Term Loan A available under this Section 2.01(c) shall
terminate. Once borrowed and repaid, no Term Loan A Advance may be
reborrowed.
(d) Term Loan B. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make a Term Loan B
available to the Borrower on the Closing Date in an aggregate principal
amount equal to such Lender's Term Loan B Specified Percentage of
$175,000,000. The Term Loan B must be borrowed in one initial Advance only
(the "Term Loan B Initial Advance"), which such Term Loan B Initial Advance
must be made on the Closing Date. If the Borrower does not borrow the Term
Loan B Initial Advance on the Closing Date, the obligations of the Lenders
to make the Term Loan B available under this Section 2.01(d) shall
terminate. Once borrowed and repaid, no Term Loan B Advance may be
reborrowed.
2.02. Making Advances.
(a Each Borrowing of Advances shall be made upon the written
notice of the Borrower, received by Administrative Agent not later than (i)
10:00 a.m. three Business Days prior to the date of the proposed Borrowing,
in the case of LIBOR Advances and (ii) 10:00 a.m. on the date of such
Borrowing, in the case of Base Advances. Each such notice of a Borrowing (a
"Borrowing Notice") shall be by telecopy or telephone, promptly confirmed
by letter, in substantially the form of Exhibit D hereto specifying
---------
therein:
(i) the date of such proposed Borrowing, which shall be a
Business Day;
(ii) the Type of Advances of which the Borrowing is to be
comprised, and whether such Borrowing is a Revolver A Advance, Revolver B
Advance, a Term Loan A Advance or a Term Loan B Advance (provided that,
other than with respect to
27
the Term Loan A Initial Advance and the Term Loan B Initial Advance, all
such borrowings under the Term Loan A and the Term Loan B shall be
Refinancing Advances);
(iii) the amount of such proposed Borrowing which, (A) in the
case of Advances under the Revolver A Loan, shall not exceed the unused
portion of the Revolver A Commitment, in the case of Advances under the
Revolver B Loan, shall not exceed the unused portion of the Revolver B
Commitment, in the case of the Term Loan A Initial Advance, shall not
exceed the Term Loan A amount of $125,000,000, and in the case of the Term
Loan B Initial Advance, shall not exceed the Term Loan B amount of
$175,000,000, (B) shall, in the case of a Borrowing of Base Advances, be in
an amount of not less than $500,000 or an integral multiple of $100,000 in
excess thereof (or any lesser amount if such amount is the remaining
undrawn portion under either of the Commitments) and (C) shall, in the case
of a Borrowing of LIBOR Advances, be in an amount of not less than
$1,000,000 or an integral multiple of $1,000,000 in excess thereof; and
(iv) if the Borrowing is to be comprised of LIBOR Advances, the
duration of the initial Interest Period applicable to such Advances.
If the Borrowing Notice fails to specify the duration of the initial
Interest Period for any Borrowing comprised of LIBOR Advances, such Interest
Period shall be three months. Administrative Agent shall promptly notify Lenders
of each such notice. Each Lender shall, before 1:00 p.m. on the date of each
Advance hereunder (other than a Refinancing Advance), make available to
Administrative Agent, at its office at Bank of America Plaza, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, such Lender's Applicable Specified Percentage of the
aggregate Advances to be made on that day in immediately available funds.
(b Unless any applicable condition specified in Article IV has not been
satisfied, Administrative Agent will make the funds promptly available to the
Borrower (other than with respect to a Refinancing Advance) by wiring such
amounts pursuant to any wiring instructions specified by the Borrower to the
Administrative Agent in writing.
(c After giving effect to any Borrowing, (i) there shall not be more than
five different Interest Periods in effect and (ii) the aggregate principal
amount of outstanding Revolver A Advances shall not exceed the Revolver A
Commitment and the aggregate principal amount of outstanding Revolver B Advances
shall not exceed the Revolver B Commitment.
(d No Interest Period applicable to any Revolver Advance and Term Loan A
Advance shall extend beyond the First Maturity Date, and no Interest Period
applicable to any Term Loan B Advance shall extend beyond the Final Maturity
Date.
(e Unless a Lender shall have notified Administrative Agent prior to the
date of any Advance that it will not make available its Applicable Specified
Percentage of any such Advance (that is not a Refinancing Advance), the
Administrative Agent may assume that such Lender has made the appropriate amount
available in accordance with Section 2.02(a) hereof, and Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a
28
corresponding amount. If and to the extent any Lender shall not have made such
amount available to Administrative Agent, such Lender and the Borrower severally
agree to repay to Administrative Agent immediately on demand such corresponding
amount together with interest thereon, from the date such amount is made
available to the Borrower until the date such amount is repaid to Administrative
Agent, at (i) in the case of the Borrower, the Base Rate, and (ii) in the case
of such Lender, the Federal Funds Rate.
(f The failure by any Lender to make available its Applicable Specified
Percentage of any Advance hereunder shall not relieve any other Lender of its
obligation, if any, to make available its Applicable Specified Percentage of any
Advance. In no event, however, shall any Lender be responsible for the failure
of any other Lender to make available any portion of any Advance.
(g The Borrower shall indemnify each Lender against any Consequential
Loss incurred by each Lender as a result of (i) any failure to fulfill, on or
before the date specified for the Advance, the conditions to the Advance set
forth herein or (ii) the Borrower's requesting that an Advance not be made on
the date specified in the Borrowing Notice.
2.03. Evidence of Debt for Borrowed Money.
(a) (i) The Revolver A Advances made by each Lender shall be evidenced by
a Note in the amount of such Lender's Revolver A Specified Percentage of
$75,000,000 (as the same may be modified pursuant to Section 11.04 hereof)
in the form of Exhibit A-1 hereto.
-----------
(ii) The Revolver B Advances made by each Lender shall be evidenced
by a Note in the amount of such Lender's Revolver B Specified Percentage of
$75,000,000 or such increased amount that may constitute the Revolver B
Commitment (as the same may be modified pursuant to Section 11.04 hereof)
in the form of Exhibit A-2 hereto.
-----------
(iii) The Term Loan A Advances made by each Lender shall be evidenced
by a Note in the amount of such Lender's Term Loan A Specified Percentage
of $125,000,000 (as the same may be modified pursuant to Section 11.04
hereof) in the form of Exhibit A-3 hereto.
-----------
(iv) The Term Loan B Advances made by each Lender shall be evidenced
by a Note in the amount of such Lender's Term Loan B Specified Percentage
of $175,000,000 (as the same may be modified pursuant to Section 11.04
hereof) in the form of Exhibit A-4 hereto.
-----------
(b) Administrative Agent's and each Lender's records shall be presumptive
evidence as to amounts owed Administrative Agent and such Lender under the Notes
and this Agreement.
2.04. Optional Prepayments.
29
(a) The Borrower may, upon at least two Business Days prior written notice
to Administrative Agent stating the proposed date and aggregate principal amount
of the prepayment, prepay the outstanding principal amount of any Advances in
whole or in part, together with accrued interest to the date of such prepayment
on the principal amount prepaid without premium or penalty other than any
Consequential Loss; provided, however, that in the case of a prepayment of a
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Base Advance, the notice of prepayment may be given by telephone by 10:00 a.m.
on the date of prepayment. Each partial prepayment shall, in the case of Base
Advances, be in an aggregate principal amount of not less than $500,000 or a
larger integral multiple of $100,000 in excess thereof and, in the case of LIBOR
Advances, be in an aggregate principal amount of not less than $1,000,000 or a
larger integral multiple of $1,000,000 in excess thereof. If any notice of
prepayment is given, the principal amount stated therein, together with accrued
interest on the amount prepaid and the amount, if any, due under Section 2.12
and Section 2.14 hereof, shall be due and payable on the date specified in such
notice unless the Borrower revokes its notice, provided that, if the Borrower
revokes its notice of prepayment prior to such date specified, the Borrower
shall reimburse the Administrative Agent for the account of all Lenders for all
Consequential Losses suffered by each Lender as a result of the Borrower's
failure to prepay. A certificate of each Lender claiming compensation under this
Section 2.04(a), setting forth in reasonable detail the calculation of the
additional amount or amounts to be paid to it hereunder shall be presumptive
evidence of the validity of such claim.
(b) No prepayments of Revolver A Advances and Revolver B Advances made
solely pursuant to this Section 2.04 shall cause the Revolver A Commitment and
the Revolver B Commitment, respectively, to be reduced. Prepayments of Term Loan
A Advances and Term Loan B Advances may not be reborrowed. All prepayments made
hereunder shall be allocated in accordance with the terms and conditions of
Section 2.13(f) hereof.
2.05. Mandatory Prepayments.
(a) Excess Cash Flow. Commencing April 30, 2000 and continuing on each
April 30 thereafter, the Borrower shall pay to Administrative Agent for the
Ratable account of Lenders to repay the Obligations, an amount equal to (i) 50%
of Excess Cash Flow for the preceding fiscal year if the Leverage Ratio
calculated at the end of the same period is less than 4.00 to 1.00, or (b) 75%
of Excess Cash Flow for the preceding fiscal year if the Leverage Ratio
calculated at the end of the same period is greater than or equal to 4.00 to
1.00.
(b) Additional Equity and Allowed Debt. To the extent that the Parent, the
Borrower or any of its Subsidiaries issues any public or private indebtedness,
or equity securities (except equity permitted to be issued by the Parent in
Section 8.11 hereof and Debt permitted to be incurred by the Parent under
Section 8.02(c) hereof, but only to the extent in each case that such Debt and
equity when added together do not exceed $250,000,000 in the aggregate over the
term of this Agreement) (this provision shall not in and of itself permit the
Borrower to consummate any of the above described transactions), then, unless
the Net Proceeds therefrom are used, within 180 days thereafter, for Permitted
Acquisitions or for Capital Expenditures relating to Towers, the Borrower and
its Subsidiaries shall immediately after the expiration of such 180-day period
use the Net Proceeds of any such transaction to repay Advances hereunder. All
prepayments made pursuant to this Section 2.05(b) shall be applied to reduce
outstanding
30
Advances, and shall reduce the Commitments in accordance with the terms of
Section 2.11(c)(ii) hereof (if applied to either Commitment by the terms of
Section 2.13(f) hereof). Upon the occurrence of a "Change of Control" as that
term is defined in the Indenture, the Borrower will repay all Advances and
Obligations hereunder (and the Commitments shall correspondingly reduce to zero
in accordance with the terms of Section 2.11(c)(iv) hereof).
(c) Asset Sales. To the extent that the Parent, the Borrower or any of its
Subsidiaries consummates any sale of any asset or any of its Properties other
than in the ordinary course of business, then unless the Net Proceeds therefrom
are used, within 180 days thereafter, for Permitted Acquisitions or for Capital
Expenditures relating to Towers, the Borrower and its Subsidiaries shall
immediately after the expiration of the 180-day period use the Net Proceeds of
any such transaction to repay Advances hereunder. All prepayments made pursuant
to this Section 2.05(c) shall be applied to reduce outstanding Advances and,
such prepayment shall also reduce the Commitments in accordance with the terms
of Section 2.11(c)(iii) hereof (if applied to either Commitment by the terms of
Section 2.13(f) 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. Application of all payments and
prepayments shall be applied in accordance with the terms of Section 2.13(f)
hereof.
2.06. Repayment.
(a) LIBOR Advances. The principal amount of each LIBOR Advance is due
and payable on the last day of the applicable Interest Period, which principal
payment may be made by means of a Refinancing Advance (subject to the other
provisions of this Agreement).
(b) Reduction of Commitments On the date of each reduction of either
of the Commitments pursuant to Section 2.11 hereof, the Borrower shall
immediately repay the Obligations in an amount equal to the difference by which
the sum of the amount of all Revolver A Advances and Revolver B Advances
outstanding on the date of reduction exceeds the Revolver A Commitment and the
Revolver B Commitment, respectively as reduced, which principal payment may not
be made by means of a Refinancing Advance.
(c) Maturity Dates. All outstanding Advances under the Revolving Loans
and the Term Loan A shall be due and payable in full on the First Maturity Date.
All outstanding Advances under the Term Loan B shall be due and payable in full
on the Final Maturity Date. All other outstanding Obligations shall be due and
payable in full on the Final Maturity Date.
(d) Installment Repayments of Term Loan A and Term Loan B. After June
30, 2001, each of the Term Loan A and Term Loan B shall be repaid by the
Borrower on each Quarterly Date, in an amount on each such date equal to the
percentage set forth below of the outstanding Term Loan A Advances and the
outstanding Term Loan B Advances, respectively, in effect on June 30, 2001, in
each case opposite each such Quarterly Date, until each of the Term Loan A
31
and the Term Loan B has been repaid in full. The first such installment
repayment shall occur on September 30, 2001, and continue thereafter as follows:
Repayment Pertage is equal to
the
Outstanding Amount of the Term
Loan Date of Installment Repayment A Advances and the outstanding of the
Term Loan A Term Loan B
----------- -----------
September 30, 2001 5.00% 0.50%
December 31, 2001 5.00% 0.50%
March 31, 2002 3.75% 0.25%
June 30, 2002 3.75% 0.25%
September 30, 2002 3.75% 0.25%
December 31, 2002 3.75% 0.25%
March 31, 2003 4.50% 0.25%
June 30, 2003 4.50% 0.25%
September 30, 2003 4.50% 0.25%
December 31, 2003 4.50% 0.25%
March 31, 2004 5.50% 0.25%
June 30, 2004 5.50% 0.25%
September 30, 2004 5.50% 0.25%
December 31, 2004 5.50% 0.25%
March 31, 2005 6.25% 0.25%
June 30, 2005 6.25% 0.25%
September 30, 2005 6.25% 0.25%
December 31, 2005 6.25% 0.25%
March 31, 2006 5.00% 0.25%
June 30, 2006 5.00% 0.25%
September 30, 2006 0.00% 0.25%
December 31, 2006 0.00% 0.25%
March 31, 2007 0.00% 47.00%
June 30, 2007 0.00% 47.00%
(e) Repayments, Generally. Any repayments made 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. All repayments
shall be allocated among the Loans in accordance with the terms of Section
2.13(f) hereof.
2.07. Interest. Subject to Section 2.08 and Section 11.08 hereof, the
Borrower shall pay interest on the unpaid principal amount of each Advance from
the date of such Advance until such principal shall be paid in full, at the
following rates per annum:
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 First
Maturity Date with respect to Advances under the Revolving Loans and the
Term Loan A and the Final Maturity Date with respect to Advances made under
the Term Loan B. Accrued and unpaid interest in respect of each LIBOR
Advance shall be paid on the last day of the appropriate Interest Period
and on the date of any prepayment or repayment of such Advance; provided,
--------
however, that if any Interest Period for a LIBOR Advance exceeds three
-------
months, interest shall also be paid on the date which falls three months
after the beginning of such Interest Period.
2.08. Default Interest. During the continuation of any Event of Default,
the Borrower shall pay, on demand, interest (after as well as before judgment to
the extent permitted by Law) on the principal amount of all Advances outstanding
and on all other Obligations due and unpaid hereunder at a per annum rate equal
to the lesser of the (a) the Highest Lawful Rate and (b) (i) to the extent any
such Advance outstanding at such time is bearing interest at the LIBOR Rate,
then the applicable LIBOR Rate plus 3.00% to the end of its 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
Agent and subject to the terms of this Agreement:
(i) elect to convert, on any Business Day, all or any portion
of outstanding Base Advances (in an aggregate amount not less than $500,000
or an integral multiple of $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 Advances comprised in the
same Borrowing (in an aggregate amount not less than $1,000,000 or an
integral multiple of $1,000,000 in excess thereof) into Base Advances; or
33
(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
$1,000,000, the LIBOR Advances comprised in such Borrowing shall automatically
convert into Base Advances at the end of each respective Interest Period.
(b) The Borrower shall deliver a notice of conversion or continuation (a
"Conversion or Continuation Notice"), in substantially the form of Exhibit E
---------
hereto, to Administrative Agent not later than 10:00 a.m. (i) three Business
Days prior to the proposed date of conversion or continuation, if the Advances
or any portion thereof are to be converted into or continued as LIBOR Advances;
and (ii) on the Business Day of the proposed conversion, if the Advances or any
portion thereof are to be converted into Base Advances.
Each such Conversion or Continuation Notice shall be by telecopy or
telephone, promptly confirmed by letter, specifying therein:
(i) the proposed date of conversion or continuation and whether
such continuation or conversion is a Revolver A Advance, a Revolver B
Advance, a Term Loan A Advance or a Term Loan B Advance (or any combination
thereof);
(ii) the aggregate amount of Advances to be converted or
continued;
(iii) the nature of the proposed conversion or continuation; and
(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.
2.10. Fees and the Fee Letter .
(a) Facility Fee. Subject to Section 11.08 hereof, the Borrower shall pay
to Administrative Agent for the account of each of the Lenders such origination
and facility fees as are agreed to by the Borrower, the Administrative Agent and
the Lenders, including those set forth in the Fee Letter.
34
(b) Commitment Fee. Subject to Section 11.08 hereof, the Borrower shall
pay to Administrative Agent for the Ratable account of Lenders having Revolver A
Specified Percentages in excess of zero and Revolver B Specified Percentages in
excess of zero, a commitment fee on the average daily amount of the sum of (i)
the difference between the Revolver A Commitment and the sum of all Revolver A
Advances outstanding, plus (ii) the difference between the Revolver B Commitment
and the sum of all Revolver B Advances outstanding plus (iii) until December 31,
1999, the difference between $125,000,000 and the sum of all Term Loan A
Advances outstanding, in each case at a per annum rate based on usage equal to
the percentage set forth below, applicable in the following circumstances,
payable in each case in arrears on each Quarterly Date and on the First Maturity
Date, commencing with the first Quarterly Date after the Closing Date, and
continuing until the First Maturity Date:
Percentage of Usage
of the Revolving Loans
and the Term Loan A Commitment Fee Percentage
------------------- -------------------------
If outstanding Revolver
Advances and Term Loan A
Advances are less than 25%
of the sum of the Commitments
plus $125,000,000 1.25%
If outstanding Revolver
Advances and Term Loan A
Advances are greater than 25%
of the sum of the Commitments
plus $125,000,000 but equal to
or less than 50% 0.75%
If outstanding Revolver
Advances and Term Loan A
Advances are greater than 50%
of the sum of the Commitments
plus $125,000,000 0.50%
(c) Other Fees and the Fee Letter. The Borrower shall pay such other fees
as are set forth in Article III hereof, in the Fee Letter and in any other Loan
Paper, in each case in accordance with the terms of such agreements. The
Borrower agrees to perform, over the term of this Agreement, all terms,
conditions and agreements of the Fee Letter in accordance with the terms
thereof.
2.11. Reduction of Commitments .
(a) Mandatory Termination of the Commitments. The Revolver A Commitment
and the Revolver B Commitment shall reduce to zero and terminate on the First
Maturity Date.
35
(b) Mandatory Scheduled Reduction of the Commitments. After June 30, 2001,
each of the Revolver A Commitment and the Revolver B Commitment shall each
automatically reduce on each Quarterly Date, in a reduction amount on each such
date equal to the percentage set forth below of the Revolver A Commitment and
the Revolver B Commitment, respectively, in effect on June 30, 2001, in each
case opposite each such Quarterly Date, until each of the Revolver A Commitment
and the Revolver B Commitment has been reduced to zero. The first such
automatic reduction in the Commitments shall occur on September 30, 2001, and
continue thereafter as follows:
Reduction Percentage is equal to the
Percentage of the Revolver A Date of Automatic Reduction
Commitment and the Revolver B of the Revolver A Commitment Commitment,
respectively, in effect on
and the Revolver B Commitment June 30, 2001
----------------------------- -------------
September 30, 2001 5.00%
December 31, 2001 5.00%
March 31, 2002 3.75%
June 30, 2002 3.75%
September 30, 2002 3.75%
December 31, 2002 3.75%
March 31, 2003 4.50%
June 30, 2003 4.50%
September 30, 2003 4.50%
December 31, 2003 4.50%
March 31, 2004 5.50%
June 30, 2004 5.50%
September 30, 2004 5.50%
December 31, 2004 5.50%
March 31, 2005 6.25%
June 30, 2005 6.25%
September 30, 2005 6.25%
December 31, 2005 6.25%
March 31, 2006 5.00%
June 30, 2006 5.00% and the Revolver A
Commitment and the Revolver B
Commitment shall each be
reduced to zero
(c) Reduction of the Commitments. The Commitments shall be permanently
reduced, pro rata between the Revolver A Commitment and the Revolver B
Commitment from time to time:
(i) on the date of, and by the amount of, each Excess Cash Flow mandatory
prepayment required by Section 2.05(a) hereof,
36
(ii) on the date of, and by the amount of, each mandatory prepayment made
from the issuance of equity or debt, in each case only as required to be
prepaid by Section 2.05(b) hereof,
(iii) on the date of, and by the amount of, each mandatory prepayment made
from the sale of assets, in each case only as required to be prepaid by
Section 2.05(c) hereof, and
(iv) on the date of any occurrence of a "Change of Control" as that term
is defined in the Indenture, the Commitments will each automatically be
reduced to zero and terminate.
No reduction in the Commitments set forth in 2.11(c) above shall reduce or
relieve the automatic scheduled reduction of the Commitments required by Section
2.11(b) above.
(d) Voluntary Reduction of the Commitments. The Borrower may from time to
time, upon notice to Administrative Agent not later than 1:00 p.m., five
Business Days in advance, terminate in whole or reduce in part either of the
Commitments, as designated by the Borrower; provided, however, that the Borrower
-------- -------
shall pay the accrued interest and the applicable Commitment Fee on the amount
of such reduction and all amounts due, and any partial reduction shall be in an
aggregate amount which is an integral multiple of $5,000,000. No voluntary
reduction in the Commitments permitted by this Section 2.11(d) shall reduce or
relieve the automatic scheduled reduction of the Commitments required by Section
2.11(b) above.
(e) Commitment Reductions, Generally. No prepayment under Section 2.04
hereof, required prepayment under Section 2.05 hereof or commitment reductions
under Sections 2.11(c) and (d) above shall reduce or relieve the scheduled
reduction required by Section 2.11(b) above. To the extent the outstanding
Revolver A Advances exceed the Revolver A Commitment after any reduction
thereof, or the outstanding Revolver B Advances exceed the Revolver B 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, neither of the Commitments may be increased or
reinstated, except with respect to the Revolver B Commitment, and only in
accordance with Section 2.18 hereof. Application of all reductions in the
Commitments shall be in accordance with the terms of Section 2.13(f) hereof.
2.12. Funding Losses . The Borrower may prepay the outstanding principal
balance of any Advance, in full at any time or in part from time to time in
accordance with the terms of Section 2.04 hereof, provided, that as a condition
--------
precedent to the Borrower's right to make, and any Lender's obligation to
accept, any such prepayment, each such prepayment shall be in the amount of 100%
of the principal amount to be prepaid, plus accrued unpaid interest thereon to
the date of prepayment, plus any other sums which have become due to
Administrative Agent and Lenders under the Loan Papers on or before the
prepayment date but have not been paid, plus (subject to Section 11.08 hereof)
any Consequential Loss.
The Borrower agrees that each Lender is not obligated to actually reinvest
the amount prepaid in any specific obligation as a condition to receiving any
Consequential Loss, or otherwise.
37
2.13. Computations and Manner of Payments.
(a) The Borrower shall make each payment hereunder and under the other Loan
Papers not later than 1:00 p.m. on the day when due in same day funds to
Administrative Agent, for the Ratable account of Lenders unless otherwise
specifically provided herein, at Administrative Agent's office at Bank of
America Plaza, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, for further credit to the
account of Pinnacle Towers Inc. No later than the end of each day when each
payment hereunder is made, the Borrower shall notify Xxxx Xxxxxxxxxxxxx, at
(000) 000-0000, or such other Person as Administrative Agent may from time to
time specify.
(b) Unless Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due hereunder that the
Borrower will not make payment in full, Administrative Agent may assume that
such payment is so made on such date and may, in reliance upon such assumption,
make distributions to Lenders. If and to the extent the Borrower shall not have
made such payment in full, each Lender shall repay to Administrative Agent
forthwith on demand the applicable amount distributed, together with interest
thereon at the Federal Funds Rate, from the date of distribution until the date
of repayment. The Borrower hereby authorizes each Lender, if and to the extent
payment is not made when due hereunder, to charge the amount so due against any
account of the Borrower with such Lender.
(c) Subject to Section 11.08 hereof, interest on LIBOR Advances under the
Loan Papers shall be calculated on the basis of actual days elapsed but computed
as if each year consisted of 360 days. Subject to Section 11.08 hereof,
interest on Base Advances, the Commitment Fee, and other amounts due under the
Loan Papers shall be calculated on the basis of actual days elapsed but computed
as if each year consisted of 365 or 366 days, as applicable. Such computations
shall be made including the first day but excluding the last day occurring in
the period for which such interest, payment or Commitment Fee is payable. Each
determination by Administrative Agent or a Lender of an interest rate, fee or
commission hereunder shall be presumptive evidence of the validity of such
claim. All payments under the Loan Papers shall be made in United States
dollars, and without setoff, counterclaim, or other defense.
(d) Whenever any payment to be made hereunder or under any other Loan
Papers shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of interest or fees, if applicable;
provided, however, if such extension would cause payment of interest on or
-------- -------
principal of LIBOR Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Reference to any particular index or reference rate for determining any
applicable interest rate under this Agreement is for purposes of calculating the
interest due and is not intended as and shall not be construed as requiring any
Lender to actually obtain funds for any Advance at any particular index or
reference rate.
(f) Notwithstanding anything to the contrary herein or in any Loan Paper,
to the extent the Borrower makes any voluntary prepayment, or voluntary
reduction of the
38
Commitments under Sections 2.04 or 2.11 hereof, or any mandatory prepayment, or
mandatory reduction of the Commitments under Sections 2.05 and 2.11 hereof, then
such reduction of Commitments or such prepayment shall be applied as follows:
(i) so long as there exists no Default or Event of Default, all
voluntary Commitment reductions and all voluntary repayments and
prepayments shall be applied as directed by the Borrower, and in the
absence of direction by the Borrower, shall be deemed to prepay and reduce,
respectively (1) pro rata between the Revolver A Commitment and the
Revolver B Commitment and the Revolving Loans, until each of the
Commitments have been reduced to zero and the outstandings under the
Revolving Loans have been repaid in full, then (2) the Term Loan A and the
Term Loan B, pro rata, until all outstanding Term Loan A Advances and Term
Loan B Advances have been repaid in full and (3) to all remaining
outstanding and unpaid Obligations; provided that, so long as there exists
no Default or Event of Default, each Lender having a Term Loan B Specified
Percentage in excess of zero may elect to decline all voluntary and
mandatory prepayments made or allocated to Term Loan B in accordance with
the terms of this Agreement, in which case such declined prepayments shall
be allocated to the Revolving Loans and the Term Loan A pro rata;
(ii) if there exists a Default or Event of Default, all mandatory and
voluntary Commitment reductions and mandatory and voluntary repayments and
prepayments shall be applied pro rata among the Revolving Loans, the Term
Loan A and the Term Loan B, and then to all remaining outstanding
Obligations; and
(iii) all Term Loan A and Term Loan B repayments and prepayments
shall be applied to installments due thereunder in the inverse order of
maturity, and all repayments and prepayments, and reductions to the
Commitments shall not affect the mandatory commitment reduction schedule
set forth in Section 2.11(b) hereof.
2.14. Yield Protection; Changed Circumstances .
(a) If any Lender determines that either (i) the adoption, after the date
hereof, of any Applicable Law, rule, regulation or guideline regarding capital
adequacy and applicable to commercial banks or financial institutions generally
or any change therein, or any change, after the date hereof, in the
interpretation or administration thereof by any Tribunal, central bank or
comparable agency charged with the interpretation or administration thereof, or
(ii) compliance by any Lender (or Lending Office of any Lender) with any request
or directive made after the date hereof applicable to commercial banks or
financial institutions generally regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency has the effect of reducing the rate of return on such Lender's capital as
a consequence of its obligations hereunder to a level below that which such
Lender could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's policies with respect to capital adequacy) by
an amount reasonably deemed by such Lender to be material, then from time to
time, within fifteen days after demand by such Lender, the Borrower shall pay to
such Lender such additional amount or amounts as will adequately compensate such
Lender for such reduction. Each Lender will notify the Borrower of any event
occurring after
39
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 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
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Borrower shall be liable for the Consequential Loss arising pursuant to those
actions.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation or administration of
any Law shall make it unlawful, or any central bank or other Tribunal shall
assert that it is unlawful, for a Lender to perform its obligations hereunder to
issue or maintain Letters of Credit, make LIBOR Advances or to
40
continue to fund or maintain LIBOR Advances hereunder, then, on notice thereof
and demand therefor by such Lender to the Borrower, (i) each LIBOR Advance will
automatically, upon such demand, convert into a Base Advance, (ii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended until such Lender notifies Administrative Agent and the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist, and (iii) the obligation of such Lender to make or
maintain Letters of Credit shall be suspended until such Lender notifies
Administrative Agent and the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist.
(d) Upon the occurrence and during the continuance of any Default or Event
of Default, (i) each LIBOR Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Advance and (ii) the
obligation of each Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended.
(e) If any Lender notifies Administrative Agent that the LIBOR Rate for any
Interest Period for any LIBOR Advances will not adequately reflect the cost to
such Lender of making, funding or maintaining LIBOR Advances for such Interest
Period, Administrative Agent shall promptly so notify the Borrower, whereupon
(i) each such LIBOR Advance will automatically, on the last day of the then
existing Interest Period therefor, convert into a Base Advance and (ii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended until such Lender notifies Administrative Agent that such
Lender has determined that the circumstances causing such suspension no longer
exist and Administrative Agent notifies the Borrower of such fact.
(f) Failure on the part of any Lender to demand compensation for any
increased costs, increased capital or reduction in amounts received or
receivable or reduction in return on capital pursuant to this Section 2.14 with
respect to any period shall not constitute a waiver of any Lender's right to
demand compensation with respect to such period or any other period, subject,
however, to the limitations set forth in this Section 2.14.
(g) The obligations of the Borrower under this Section 2.14 shall survive
any termination of this Agreement, provided that, in no event shall the Borrower
be required to make a payment under this Section 2.14 with respect to any event
of which the Lender making such claim had knowledge more than twelve months
prior to demand for such payment.
(h) Determinations by Lenders for purposes of this Section 2.14 shall be
presumptively correct. Any certificate delivered to the Borrower by a Lender
pursuant to this Section 2.14 shall include in reasonable detail the basis for
such Lender's demand for additional compensation and a certification that the
claim for compensation is consistent with such Lender's treatment of similar
customers having similar provisions generally in their agreements with such
Lender.
(i) Notwithstanding any other provision of this Agreement, no Lender not
organized under the Laws of the United States or any State (or which has a Bank
Affiliate not organized under the Laws of the United States or any State) shall
be entitled to compensation pursuant to this Section 2.14 with respect to any
amount which would otherwise be due under this Section
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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 Revolver A Advances and the
Term Loan B 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. The proceeds of the Revolver B Advances and
the Term Loan A Advances shall be solely used in connection with the acquisition
of assets in accordance with the terms of Section 1008(v) of the Indenture, such
that all Revolver B Advances and all Term Loan A Advances constitute in each
case, Acquisition Debt in accordance with the terms of the Indenture, the other
Parent Senior Notes Documentation and permitted fully secured indebtedness under
all Second Parent Issuance Documentation.
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)
certain pre-existing leasehold deeds of trust and/or mortgages on Borrower's
leasehold interest under certain Ground Leases (collectively, together with all
other Properties or assets of the Borrower, Subsidiaries and other Persons
securing the Obligations from time to time, the "Collateral"). The Borrower
agrees that it will, and will cause its Subsidiaries and the Parent to, execute
and deliver, or cause to be executed and delivered, such documents as the
Administrative Agent may from time to time reasonably request to create and
perfect a first Lien for the benefit of the Administrative Agent and the Lenders
in the Collateral, provided that, notwithstanding the foregoing, the Borrower is
not obligated to grant or perfect any leasehold deed of trust or leasehold
mortgage.
(b) Collateral Call. The Borrower agrees: (i) upon the creation,
---------------
formation or acquisition of any direct or indirect Subsidiary of the Borrower,
to immediately pledge 100% of the Capital Stock of any such Subsidiary to secure
the Obligations, pursuant to a pledge agreement substantially in the form of
Exhibit J hereto, and to promptly deliver to the Administrative Agent all
---------
certificates or other documentation evidencing 100% of such Capital Stock and,
if such Capital Stock is stock of a corporation, together with stock powers
executed in blank and (ii) to, and agrees to cause the Subsidiaries of the
Borrower to, grant the Administrative Agent 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(a), (b)
and (d) hereof with respect to all owned or acquired real estate by the Borrower
or any
42
Subsidiary from time to time. The Borrower shall, and shall cause the
Subsidiaries of the Borrower to, provide for the benefit of Administrative Agent
and Lenders securing the Obligations in any other Property of the Borrower and
its Subsidiaries, all items to fully effect the foregoing, including, without
limitation, providing the Administrative Agent with UCC-1's, new security
agreements, appraisals, hazard insurance, UCC-11 searches, Tax and Lien
searches, intellectual property documentation and registration and other similar
types of documents, consents, authorizations, Licenses, instruments and
agreements relating to all Property of the Borrower and its Subsidiaries as
reasonably requested by the Administrative Agent from time to time.
Notwithstanding the foregoing, in no event shall the Borrower be obligated to
grant, or perfect, any leasehold mortgage or leasehold deed of trust.
2.17. Replacement of a Lender . If any Lender has requested compensation
or reimbursement in accordance with the terms of Section 2.14 hereof or in
accordance with the terms of Section 11.07 hereof and (a) such request is not
the result of any uniform changes in the statutes or regulations for capital
adequacy, (b) there exists no Default or Event of Default hereunder, and (c) the
Borrower and such Lender are unable to reach a written agreement regarding such
request within 30 days following written notice by such Lender to the Borrower
and the Administrative Agent of such request, then after the expiration of 30
days following the delivery of the notice under Section 2.14 or Section 11.07
hereof, the Borrower may replace such Lender in whole with another Eligible
Assignee reasonably acceptable to Administrative Agent pursuant to an Assignment
and Acceptance and in accordance with Section 11.04 hereof. Until such time as
any Lender is replaced by the Borrower, the Borrower shall reimburse or
compensate such Lender in accordance with the terms of Section 2.14 hereof and
Section 11.07 hereof.
2.18. Conditions Precedent to the Increase of the Revolver B Commitment .
Prior to June 30, 2001, upon written request by the Borrower to the
Administrative Agent and any other existing Lenders of its choice not less than
five Business Days prior to the proposed effective date of the proposed
increase, the Revolver B Commitment shall, subject to the further terms and
conditions set forth below, increase to a maximum of $125,000,000 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 Revolver B Commitment and the
subsequent Revolver B Advance to the Borrower up to the amount of the
Revolver B 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, 1998; and
43
(d) On any date of proposed increase, the sum of all Revolver B
Advances outstanding (after giving effect to any proposed Revolver B
Advance to be made on such date) shall not exceed the Revolver B
Commitment; and
(e) The proposed increase shall occur prior to June 30, 2001 and the
Revolver B Commitment as increased shall not be in excess of the sum of the
Revolver B 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 Revolver B
Commitment not more than five times, in an aggregate amount for such
increases not to exceed the Unavailable Commitment . Each Lender specified
by the Borrower shall have received not less than 5 Business Days' prior
written notice from the Borrower requesting such Revolver B Commitment
increase. Each such Lender electing to participate in such Revolver B
Commitment increase shall commit to an amount not less than $5,000,000, but
shall accept any allocation amount designated by the Borrower and the
Administrative Agent that is equal to or less than its proposed portion of
the Revolver B Commitment increase; and
(g) Notwithstanding anything herein or in any other Loan Paper to the
contrary, (i) the Borrower is not obligated to notify each Lender of, or to
allocate to any existing Lender any portion of, the proposed increase, and
the Borrower and the Administrative Agent may agree to add other creditors
in connection with any such proposed increase. Each existing Lender agrees
and acknowledges that new creditors may be allocated all or any portion of
the proposed increase upon the determination of the Borrower and the
Administrative Agent; and
(h) Each of the proposed increases shall be in an aggregate minimum
amount of $10,000,000 and $5,000,000 multiples thereof; and
(i) The Administrative Agent shall have received a certificate from
the Borrower to the effect that (i) such increase has received all required
regulatory approvals, if necessary, and is in compliance with all
applicable Laws, and (ii) no other approvals or consents from any Person
are required by any such Person except to the extent they have been
received; and
(j) Each new Lender (including any new Lenders party hereto) shall
have received a promissory Note evidencing its new Revolver B Specified
Percentage of the Revolver B Commitment, and the Borrower and each new
Lender agrees to execute any and all such documents deemed necessary by the
Administrative Agent in order to effectuate this Section 2.18 (whether UCC-
1s, new documentation relating to any Collateral, Guaranty or otherwise);
and
44
(k) On the date of increase, the Administrative Agent shall deliver to
each Lender evidence of new Revolver B Specified Percentages adjusted to
give effect to the increase in the Revolver B Commitment; and
(l) On or prior to the date of increase, each new lender being added
to the credit facility shall deliver to the Borrower and the Administrative
Agent documentation acceptable to the Administrative Agent evidencing such
new Lender's acceptance of this Agreement and all the other Loan Papers in
form and substance reasonably acceptable to the Administrative Agent (and
making such lender a party to this Agreement and the other Loan Papers);
and
(m) The Administrative Agent shall have received a pro-forma
Compliance Certificate in form and substance acceptable to the Lenders and
demonstrating compliance with the terms of this Agreement and the Loan
Papers for one full year after the date of such proposed increase; and
(n) The Administrative Agent shall have received financial projections
in form and substance acceptable to the Lenders and demonstrating
compliance with the financial covenants set forth in Section 8.01 hereof
throughout the term of this Agreement; and
(o) The Revolver B Commitment shall (i) never exceed the sum of the
Revolver B 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 Revolver B
Commitment; and
(q) The Administrative Agent on behalf of each Lender shall have
received all amendments to security agreements, deeds of trust and
mortgages as the Administrative Agent shall deem necessary to maintain its
valid and perfected Lien.
No Lender shall be obligated to increase the dollar amount of its share of
the Revolver B Commitment without its written consent in its sole discretion.
In connection with any increase to the Revolver B Commitment in accordance with
the terms of this Section 2.18, each existing Lender (regardless of whether such
Lender is participating in such increase) agrees to execute any and all
agreements requested by the Administrative Agent to effectuate the intent of
this Section 2.18. Notwithstanding anything contained herein to the contrary,
the limitations placed upon assignments set forth in Section 11.04 hereof shall
not apply to proposed increases pursuant to this Section.
ARTICLE III. LETTERS OF CREDIT
45
3.01. Issuance of Letters of Credit. Letters of Credit issued under the
Original Credit Agreement shall be deemed, for the purposes of this Agreement,
to be issued hereunder, and each such Letter of Credit shall be treated
accordingly. The Borrower shall give the Administrative Agent not less than five
Business Days prior written notice of a request for the issuance of a Letter of
Credit, and the Administrative Agent shall promptly notify each Lender of such
request. Upon receipt of the Borrower's properly completed and duly executed
Applications, and subject to the terms of such Applications and to the terms of
this Agreement, the Administrative Agent agrees to issue Letters of Credit on
behalf of the Borrower in an aggregate face amount not in excess of the Letter
of Credit Commitment. No Letter of Credit shall have a maturity extending beyond
the earliest of (i) the First Maturity Date, or (ii) one year from the date of
its issuance, or (iii) such earlier date as may be required to enable the
Borrower to satisfy its repayment obligations under Section 2.06 hereof
(including, without limitation, such repayment obligations resulting from a
decrease in the Revolver B Commitment required by Section 2.11 hereof). Subject
to such maturity limitations and so long as no Default or Event of Default has
occurred and is continuing or would result from the renewal of a Letter of
Credit, the Letters of Credit may be renewed by the Administrative Agent in its
discretion. The Lenders shall participate ratably in 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 Revolver B 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 Revolver B 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 $75,000,000 (as may be increased by Section 2.18 hereof, and as
may be reduced by Section 2.11 hereof), and at no time shall the sum of all
Revolver B 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
Revolver B Specified Percentage of the Revolver B 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 Agent for its
own account, an application and 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 Agent for the account of the Administrative
Agent and the Lenders in accordance with their Revolver B 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 Agent quarterly as it accrues on each Quarterly Date during the
term of the Letter of Credit and on the expiration or renewal and/or extension
of each such Letter of Credit, beginning with the first such Quarterly Date
after the issuance of each Letter of Credit and ending on the expiration date of
each such Letter of Credit or the renewal and/or extension of each such Letter
of Credit.
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3.03. Reimbursement Obligations.
(a) The Borrower hereby agrees to reimburse Administrative Agent
immediately upon demand by Administrative Agent, and in immediately available
funds, for any payment or disbursement made by Administrative Agent under any
Letter of Credit. Payment shall be made by the Borrower with interest on the
amount so paid or disbursed by Administrative Agent from and including the date
payment is made under any Letter of Credit to and including the date of payment,
at the lesser of (i) the Highest Lawful Rate, and (ii) the sum of the Base Rate
in effect from time to time plus two percent (2%) per annum; provided, however,
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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 Revolver B Specified
Percentage, shall automatically be deemed made on the date of any such payment
or disbursement made by Administrative Agent in the amount of such obligation
and subject to the terms of this Agreement.
(b) The Borrower hereby also agrees to pay to Administrative Agent
immediately upon demand by Administrative Agent and in immediately available
funds, as security for their reimbursement obligations in respect of the Letters
of Credit under Section 3.03(a) hereof and any other amounts payable hereunder
and under the Notes, an amount equal to the aggregate amount available to be
drawn under Letters of Credit then outstanding, irrespective of whether the
Letters of Credit have been drawn upon, upon an Event of Default. Any such
payments shall be deposited in a separate account designated "Pinnacle Special
Account" or such other designation as Administrative Agent shall elect. All such
amounts deposited with Administrative Agent shall be and shall remain funds of
the Borrower on deposit with Administrative Agent and may be invested by
Administrative Agent as Administrative Agent shall determine. Such amounts may
not be used by Administrative Agent to pay the drawings under the Letters of
Credit; however, such amounts may be used by Administrative Agent as
reimbursement for Letter of Credit drawings which Administrative Agent has paid.
If any amounts in the Pinnacle Special Account shall have been deposited upon
the occurrence of an Event of Default only and such Event of Default shall have
been subsequently cured or waived and no other Event of Default exists, the
Borrower shall be relieved of its obligations under this Section 3.03(b) until
an Event of Default once again occurs. During the existence of an Event of
Default but after the expiration of any Letter of Credit that was not drawn
upon, the Borrower may direct the Administrative Agent to use any cash
collateral for any such expired Letter of Credit, if any, to reduce the amount
of the Obligations. Any amounts remaining in the Pinnacle Special Account, after
the date of the expiration of all Letters of Credit and after all Obligations
have been paid in full, shall be repaid to the Borrower promptly after such
expiration and such payment in full.
(c) The obligations of the Borrower under this Section 3.03 will
continue until all Letters of Credit have expired and all reimbursement
obligations with respect thereto have been paid in full by the Borrower and
until all other Obligations shall have been paid in full.
(d) The Borrower shall be obligated to reimburse Administrative Agent
upon demand for all amounts paid under the Letters of Credit as set forth in
Section 3.03(a) hereof; provided,
47
however, if the Borrower for any reason fails to reimburse Administrative Agent
in full upon demand, whether by borrowing Advances to pay such reimbursement
obligations or otherwise, the Lenders shall reimburse Administrative Agent in
accordance with each Lender's Revolver B 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 Agent.
(e) The Borrower shall indemnify and hold Administrative Agent or any
Lender, its officers, directors, representatives and employees harmless from
loss for any claim, demand or liability which may be asserted against
Administrative Agent or such indemnified party in connection with actions taken
under the Letters of Credit or in connection therewith (including losses
resulting from the negligence of Administrative Agent or such indemnified
party), and shall pay Administrative Agent for reasonable fees of attorneys (who
may be employees of Administrative Agent) and legal costs paid or incurred by
Administrative Agent in connection with any matter related to the Letters of
Credit, except for losses and liabilities incurred as a direct result of the
gross negligence or wilful misconduct of Administrative Agent or such
indemnified party. If the Borrower for any reason fails to indemnify or pay
Administrative Agent or such indemnified party as set forth herein in full, the
Lenders shall indemnify and pay Administrative Agent upon demand, in accordance
with each Lender's Revolver B Specified Percentage of such amounts due and
unpaid from the Borrower. The provisions of this Section 3.03(e) shall survive
the termination of this Agreement.
3.04. Lenders' Obligations. Each Lender agrees, unconditionally and
irrevocably to reimburse Administrative Agent (to the extent Administrative
Agent is not otherwise reimbursed by the Borrower in accordance with Section
3.03(a) hereof) on demand for such Lender's Revolver B Specified Percentage of
each draw paid by Administrative Agent under any Letter of Credit. All amounts
payable by any Lender under this subsection shall include interest thereon at
the Federal Funds Rate, from the date of the applicable draw to the date of
reimbursement by such Lender. No Lender shall be liable for the performance or
nonperformance of the obligations of any other Lender under this Section. The
obligations of the Lenders under this Section shall continue after the First
Maturity Date and shall survive termination of any Loan Papers.
3.05. Administrative Agent's Obligations.
(a) Administrative Agent makes no representation or warranty, and
assumes no responsibility with respect to the validity, legality, sufficiency or
enforceability of any Application or any document relative thereto or to the
collectibility thereunder. Administrative Agent assumes no responsibility for
the financial condition of the Borrower and its Subsidiaries or for the
performance of any obligation of the Borrower. Administrative Agent may use its
discretion with respect to exercising or refraining from exercising any rights,
or taking or refraining from taking any action which may be vested in it or
which it may be entitled to take or assert with respect to any Letter of Credit
or any Application.
(b) Except as set forth in subsection (c) below, Administrative Agent
shall be under no liability to any Lender, with respect to anything the
Administrative Agent may do or refrain from doing in the exercise of its
judgment, the sole liability and responsibility of Administrative
48
Agent being to handle each Lender's share on as favorable a basis as
Administrative Agent handles its own share and to promptly remit to each Lender
its share of any sums received by Administrative Agent under any Application.
Administrative Agent shall have no duties or responsibilities except those
expressly set forth herein and those duties and liabilities shall be subject to
the limitations and qualifications set forth herein.
(c) Neither Administrative Agent nor any of its directors, officers, or
employees shall be liable for any action taken or omitted (whether or not such
action taken or omitted is expressly set forth herein) under or in connection
herewith or any other instrument or document in connection herewith, except for
gross negligence or willful misconduct, and no Lender waives its right to
institute legal action against Administrative Agent for wrongful payment of any
Letter of Credit due to Administrative Agent's gross negligence or willful
misconduct. Administrative Agent shall incur no liability to any Lender, the
Borrower or any Affiliate of the Borrower or Lender in acting upon any notice,
document, order, consent, certificate, warrant or other instrument reasonably
believed by Administrative Agent to be genuine or authentic and to be signed by
the proper party.
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to Closing, Effectiveness of this Agreement and
the Refunding Advance. The effectiveness of this Agreement and to make the
initial refunding Advance to refinance the existing indebtedness, or issue the
first Letter of Credit is subject to receipt by the Administrative Agent of each
of the following, in form and substance satisfactory to the Administrative
Agent, 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
conducting material business;
(b) duly executed Notes, payable to the order of each Lender in an
amount for each Lender (i) equal to its Revolver A Specified Percentage of the
Revolver A Commitment, (ii) equal to its Revolver B Specified Percentage of the
Revolver B Commitment, (iii) equal to its Term Loan A Specified Percentage of
$125,000,000 and (iv) equal to its Term Loan B Specified Percentage of
$175,000,000;
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(c) duly executed and completed confirmation agreement confirming
obligations under (i) pledge agreements by the Parent and the Borrower; (ii) the
Guaranty of the Obligations executed by the Parent and the Subsidiaries of the
Borrower; (iii) Security Agreement by the Borrower, the Parent and the
Subsidiaries of the Borrower granting the Lenders a lien and security interest
in all assets owned by the Borrower, the Parent and the Subsidiaries of the
Borrower; and (iv) all other Loan Papers, including without limitation, all
mortgages, deeds of trust, and deeds to secure debt duly filed in all required
locations and each item required to be delivered on Schedule 2.16 hereto, except
-------------
those Loan Papers specifically agreed to in Section 6.15 hereof;
(d) copies of all financing statements filed against the Borrower, the
Parent and each Subsidiary of the Borrower, as debtor;
(e) opinions of counsel to the Borrower, the Parent and each Subsidiary
of the Borrower addressed to the Lenders and in form and substance satisfactory
to the Lenders, dated the Closing Date, including, without limitation, an
opinion of counsel to the Borrower that this Agreement does not violate or
conflict with any term or condition of the Indenture of any of the other Parent
Senior Notes Documentation;
(f) copies of insurance binders or certificates covering the assets of
the Borrower, the Parent and the Subsidiaries of the Borrower, and meeting the
requirements of Section 6.05 hereof;
(g) payment of all fees due to the Administrative Agent in accordance
with the terms of the Fee Letter to be paid on the Closing Date and
reimbursement for Administrative Agent of its reasonable fees and expenses and
for Special Counsel's reasonable fees and expenses rendered through the date
hereof;
(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 Agent, Special Counsel or any Lender may reasonably request in
connection with such transactions;
(i) copies of the following audited financial statements for the
Borrower (and as applicable, the Parent), as of and for the period ended
December 31, 1998; (i) balance sheets of the Borrower, the Parent and the
Subsidiaries of the Borrower as of the end of such period, and (ii) statements
of income and changes in cash for such period; all in reasonable detail and
certified by an Authorized Officer to the best of his knowledge to present
fairly in all material respects the consolidated financial position of the
Borrower and the results of operations for the period then ended and, except as
noted therein, to be in accordance with GAAP (other than footnotes thereto);
(j) a duly completed Compliance Certificate evidencing no Default or
Event of Default as of the Closing Date; and
50
(k) in form and substance satisfactory to the Lenders and Special
Counsel, such other documents, instruments and certificates as the
Administrative Agent or any Lender may reasonably require in connection with the
transactions contemplated hereby, including without limitation the status,
organization or authority of the Borrower, the Parent and the Subsidiaries of
the Borrower, and the enforceability of and security for the Obligations.
4.02. Conditions Precedent to All Advances and Letters of Credit. The
obligation of each Lender to make each Advance hereunder and the obligation of
the Administrative Agent to issue any Letter of Credit shall be subject to the
further conditions precedent that on the date of such Advance or such issuance
of such Letter of Credit:
(a) All of the representations and warranties of the Borrower under this
Agreement shall be true and correct at such time in all material respects, both
before and after giving effect to the application of the proceeds of the Advance
or the issuance of the Letter of Credit, except those representations and
warranties that specifically speak as of a particular date;
(b) The incumbency of the Authorized Officers shall be as stated in the
certificate of incumbency delivered in the Borrower's loan certificate pursuant
to Section 4.01(a) or as subsequently modified and reflected in a certificate of
incumbency delivered to the Administrative Agent. The Lenders may, without
waiving this condition, consider it fulfilled and a representation by the
Borrower made to such effect if no written notice to the contrary, dated on or
before the date of such Advance or the issuance of such Letter of Credit, is
received by the Administrative Agent from the Borrower prior to the making of
such Advance or such Letter of Credit;
(c) There shall not exist a Default hereunder or an Event of Default
hereunder and none shall exist as a result of making any such Advance or such
Letter of Credit, and the Administrative Agent shall have received written or
telephonic certification thereof by an Authorized Officer (which certification,
if telephonic, shall be followed promptly by written certification);
(d) There shall have occurred no Material Adverse Change since December
31, 1998;
(e) In the case of each Letter of Credit, Borrower shall have delivered
to the Administrative Agent a duly executed and complete Application acceptable
to Administrative Agent;
(f) In the case of any Advance under the Revolving Loan, the aggregate
outstanding Revolver A Advances, after giving effect to any such proposed
Revolver A Advance, shall not exceed the Revolver A Commitment, and the
aggregate outstanding Revolver B Advances, after giving effect to any such
proposed Revolver B Advance, shall not exceed the Revolver B Commitment,
(g) In the case of any Advance under the Revolving B Loan and/or the
Term Loan A Initial Advance, and/or the issuance of any Letter of Credit, the
Borrower, by making its
51
borrowing request under such Revolving B Loan and/or the Term Loan A, or
requesting the issuance of any Letter of Credit, represents and warrants to the
Administrative Agent and each Lender that the proceeds of such Advance shall be
used in accordance with the terms of Section 2.15 hereof, and
(h) Notwithstanding anything to the contrary herein or in any other Loan
Paper, until the earlier of (i) the consummation of the Motorola Acquisition in
accordance with the terms of Section 4.04 hereof or (ii) the date upon which the
Total Specified Percentage of the Administrative Agent is equal to or less than
11.11% due to assignments to Lenders in accordance with the terms of Section
11.04 hereof, and only after the Administrative Agent has received written
notice from the Borrower in accordance with the terms of Section 6.19 hereof,
the sum of (A) the aggregate amount of all outstanding Advances under the Loans,
plus (B) the aggregate face amount of all outstanding and undrawn Letters of
Credit, plus (C) the aggregate amount of all outstanding reimbursement
obligations with respect to draws on Letters of Credit may not, at any time,
exceed $250,000,000.
4.03. Conditions Precedent to Advances for Permitted Acquisitions, Except
the Motorola Acquisition. 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 except the Motorola Acquisition, shall be subject to
the further conditions precedent that the Borrower has complied with all terms
and provisions of Sections 6.15 and 6.16 hereof.
4.04. Conditions Precedent to Motorola Acquisition and the Making of any
Advance with Respect Thereto. The obligation of each Lender to make any Advance
in connection with Motorola Acquisition and the consummation by the Borrower of
the Motorola Acquisition shall each be subject to the further conditions
precedent that:
(a) the Borrower has complied with all terms and provisions of Sections
4.02, 4.03, 6.15, 6.16, 6.18 and 6.19 hereof and all other terms and conditions
of this Agreement and the Loan Papers,
(b) the Borrower shall have delivered to the Administrative Agent (i)
audited financial statements for the fiscal year ended December 31, 1998, (ii)
any later audited financial statements of the assets, (iii) financial statements
for the fiscal quarters ending March 31, 1999 and June 30, 1999 (to the extent
the June 30, 1999 financial statements are available and in the possession of
the Borrower), in each case in connection with the towers and other assets being
acquired by the Borrower from Motorola and financial statements, and (iv) such
other financial information regarding Motorola, the Motorola Acquisition and the
towers and other assets being acquired by the Borrower from Motorola as the
Administrative Agent or any other Lender shall reasonably request,
(c) the Borrower shall have entered into the Acquisition Agreement and
shall have delivered an executed copy of the Acquisition Agreement to the
Administrative Agent together with all exhibits and schedules thereto,
52
(d) consummation of the Motorola Acquisition concurrently with the
application of Advances under this Section 4.04, on terms and conditions as set
forth in the Acquisition Agreement, and pursuant to such other documentation
contemplated by the Acquisition Agreement that is reasonably acceptable to the
Administrative Agent and the Lenders in their reasonable discretion,
(e) the absence of a material adverse change in the financial condition,
business operations, properties or prospects of the towers and other assets
being acquired by Borrower from Motorola,
(f) the Administrative Agent shall have not discovered that any
information or other matter disclosed to the Administrative Agent and BAS by the
Borrower, the Parent or Motorola, prior to the date hereof and regarding
Motorola and the Motorola Acquisition, and/or the assets being acquired by the
Borrower in connection with the Motorola Acquisition, is incorrect, or
inconsistent with current information, in each case, in both a material and
adverse manner, when taken as a whole as it relates to the assets being
purchased,
(g) evidence that the Borrower has received not less than $30,000,000 in
gross proceeds (or such greater amount that is raised by the Parent) as an
equity contribution from the Parent which issued unsecured public Debt for
Borrowed Money of the Parent or Bridge Debt of the Parent or equity of the
Parent and downstreamed the proceeds to the Borrower, any such Debt for Borrowed
Money and Bridge Debt to be incurred by the Parent in accordance with the terms
of Section 8.02(c) hereof and upon other terms and conditions acceptable to the
Administrative Agent and the Majority Lenders,
(h) executed copies of all material agreements, certificates,
instruments and other documents, together with schedules thereto, in each case
executed or delivered by any Person in connection with the Motorola Acquisition,
each in form and substance satisfactory to the Lenders and Special Counsel,
including, without limitation, opinions of counsel (if any) with respect to the
Parent, the Borrower and Motorola (which such opinions of counsel to the
Borrower and the Parent and their subsidiaries (if any) shall state that the
Lenders are entitled to rely thereon), and
(i) in form and substance satisfactory to the Lenders and Special
Counsel, such other documents, instruments and certificates as the
Administrative Agent or any Lender may reasonably require from the Borrower, the
Parent and their Subsidiaries in connection with the Motorola Acquisition,
including without limitation, and all such documents, instruments, certificates
and other items reasonably requested by the Lenders in connection with the
enforceability of, and security in, the assets and towers being acquired from
Motorola as collateral for the Obligations.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties. The Borrower hereby represents and
warrants to each Lender as follows:
53
(a) The respective jurisdictions of incorporation and percentage ownership
of the Subsidiaries of the Parent by the Parent and the Borrower on the Closing
Date and listed on Schedule 5.01(a) hereto are true and correct. Each of the
----------------
Parent, the Borrower and its Subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of its state of
organization. Each of the Parent, the Borrower and its Subsidiaries has the
corporate power and authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted. Each of the Parent, the
Borrower and its Subsidiaries is duly qualified, in good standing and authorized
to do business in each jurisdiction in which the character of its Properties or
the nature of its business requires such qualification or authorization, except
where the failure to so qualify would not cause a Material Adverse Change.
(b) The Borrower has corporate power and has taken all necessary corporate
action to authorize it to borrow hereunder. Each of the Parent, the Borrower
and its Subsidiaries has corporate power and has taken all necessary corporate
action to execute, deliver and perform the Loan Papers to which it is party in
accordance with the terms thereof, and to consummate the transactions
contemplated thereby. Each Loan Paper has been duly executed and delivered by
the Parent, the Borrower or such Subsidiary executing it. Each of the Loan
Papers to which the Parent, the Borrower, and its Subsidiaries are party is a
legal, valid and binding respective obligation of the Parent, the Borrower or
such Subsidiary, as applicable, enforceable in accordance with its terms,
subject, to enforcement of remedies, to the following qualifications: (i)
equitable principles generally, and (ii) bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Parent, the Borrower or any Subsidiary of the
Borrower).
(c) The execution, delivery and performance by the Parent, the Borrower and
its Subsidiaries of the other Loan Papers to which they are respectively a
party, and the consummation of the transactions contemplated thereby, do not and
will not (i) require any consent or approval not already obtained, (ii) violate
any Applicable Law, (iii) conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws of the Parent, the
Borrower or any Subsidiary of the Borrower, or under any material License,
indenture, agreement or other instrument, to which the Parent, the Borrower or
any Subsidiary of the Borrower is a party or beneficiary of, or by which they or
their respective Properties may be bound, or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Parent, the Borrower or any Subsidiary of the
Borrower, except Permitted Liens.
(d) The Parent, the Borrower and its Subsidiaries are primarily engaged in
the operation of leasing and subleasing towers and tower sites, and pursuing
activities related thereto.
54
(e) All material Licenses have been duly authorized and obtained, and are
in full force and effect. The Parent, the Borrower and its Subsidiaries are and
will continue to be in compliance in all material respects with all provisions
thereof. On the Closing Date, no material License is the subject of any pending
or, to the best of the Borrower's knowledge, threatened challenge or revocation.
After the Closing Date, no material License is the subject of any pending or, to
the best of the Borrower's knowledge, threatened challenge or revocation, which
such event could cause a Material Adverse Change. The Parent, the Borrower and
its Subsidiaries are not required to obtain any material License that has not
already been obtained from, or effect any material filing or registration that
has not already been effected with, the FCC, the FAA or any other federal, state
or local regulatory authority in connection with the execution and delivery of
this Agreement or any other Loan Paper, or the performance thereof (other than
any enforcement of remedies by the Administrative Agent on behalf of the
Lenders), in accordance with their respective terms, including any borrowings
hereunder.
(f) The Parent, the Borrower and its Subsidiaries are in compliance in all
material respects with all Applicable Laws. The Parent, the Borrower and its
Subsidiaries have duly and timely filed all reports, statements and filings that
are required to be filed by any of them under the Communications Act, and are in
all material respects in compliance therewith, including without limitation the
rules and regulations of the FCC and FAA. Except as set forth on Schedule
--------
5.01(f) hereto, as of the Closing Date, the Borrower is not aware of any event
-------
or circumstance constituting noncompliance (or any Person alleging
noncompliance) with any rule or regulation of the FAA. After the Closing Date,
the Borrower is not aware of any event or circumstance constituting
noncompliance (or any Person alleging noncompliance) with any rule or regulation
of the FAA, which such event or circumstance could cause a Material Adverse
Change.
(g) The Parent, the Borrower and its Subsidiaries have good and
indefeasible title to, or a valid leasehold interest in, all of their material
assets. None of their assets are subject to any Liens, except Permitted Liens.
As of the Closing Date, no financing statement or other Lien filing authorized
by the Parent, the Borrower or any Subsidiary of the Borrower (except relating
to Permitted Liens) is on file in any state or jurisdiction that names the
Parent, the Borrower or any of its Subsidiaries as debtor or covers (or purports
to cover) any assets of the Parent, the Borrower or any of its Subsidiaries.
After the Closing Date, no financing statement or other Lien filing authorized
by the Parent, the Borrower or any Subsidiary of the Borrower (except relating
to Permitted Liens) is on file in any state or jurisdiction that names the
Parent, the Borrower or any of its Subsidiaries as debtor or covers (or purports
to cover) any assets of the Parent, the Borrower or any of its Subsidiaries,
which such financing statement or other Lien filing could cause a Material
Adverse Change. The Parent, the Borrower and its Subsidiaries have not signed
any such financing statement or filing, nor any security agreement authorizing
any Person to file any such financing statement or filing.
(h) On the Closing Date, except as reflected on Schedule 5.01(h) hereto,
----------------
there is no action, suit, proceeding or any other Litigation pending against,
or, to the best of the Borrower's knowledge, threatened against the Parent, the
Borrower or any of its Subsidiaries, or in any other manner relating directly
and materially adversely to the Parent, the Borrower, any of its Subsidiaries,
or any of their material Properties, in any court or before any arbitrator of
any kind
55
or before or by any governmental body. On each date after the Closing Date on
which this representation is deemed to be made, there is no action, suit,
proceeding or any other Litigation pending against, or, to the best of the
Borrower's knowledge, threatened against the Parent, the Borrower or any of its
Subsidiaries, or in any other manner relating to the Parent, the Borrower, any
of its Subsidiaries, or any of their Properties, in any court or before any
arbitrator of any kind or before or by any governmental body, which could
reasonably be expected to cause a Material Adverse Change.
(i) All federal, state and other Tax returns of the Parent, the Borrower
and its Subsidiaries required by law to be filed have been duly filed and all
federal, state and other Taxes, assessments and other governmental charges or
levies upon the Parent, the Borrower, its Subsidiaries or any of their
Properties, income, profits and assets, which are due and payable, have been
paid, except those that are diligently contested in good faith by the Borrower
and for which a reserve has been established in accordance with GAAP, and no
Lien (other than a Permitted Lien) has attached and no foreclosure, distraint,
sale or similar proceedings have been commenced.
(j) The Borrower has furnished or caused to be furnished to the Lenders
copies of its audited financial statements at December 31, 1998, which are
prepared in good faith and complete in all material respects and present fairly
in all material respects and in accordance with GAAP (except, with respect to
the financial statements delivered prior to the Closing Date, as noted therein),
the financial position of the Parent, the Borrower and its Subsidiaries as at
such dates and the results of operations for the periods then ended. The
Parent, the Borrower and its Subsidiaries have no material liabilities,
contingent or otherwise, nor material losses, except as disclosed in writing to
the Lenders prior to the Closing Date or as disclosed on any subsequent
financial statements. On the Closing Date after giving effect to the Advances
made on such date, each of the Parent, the Borrower and its Subsidiaries is
Solvent.
(k) Since the date of the most recent financial statements delivered to the
Lenders, no event or circumstances have occurred or arisen that could constitute
a Material Adverse Change.
(l) None of the Borrower or its Controlled Group maintains or contributes
to any Plan other than those disclosed to the Administrative Agent in writing.
Each such Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code, and any other applicable Federal or state law,
rule or regulation. With respect to each Plan of the Borrower and each member
of its Controlled Group (other than a Multiemployer Plan), all reports required
under ERISA or any other Applicable Law to be filed with any governmental
authority, the failure of which to file could reasonably result in liability of
the Borrower or any member of its Controlled Group in excess of $100,000, have
been duly filed. All such reports are true and correct in all material respects
as of the date given. No such Plan of the Borrower or any member of its
Controlled Group has any accumulated funding deficiency (as defined in Section
412(a) of the Code) (without regard to any waiver granted under Section 412 of
the Code), nor has any funding waiver from the Internal Revenue Service been
received or requested. None of the Borrower or any member of its Controlled
Group has failed to make any contribution or pay any amount due or owing as
required by Section 412 of the Code or Section 302 of ERISA or the terms of any
such Plan prior to the due date under Section 412 of the Code
56
and Section 302 of ERISA. There has been no ERISA Event or any event requiring
disclosure under Section 4041(c)(3)(C), 4068(f), 4063(a) or 4043(b) of ERISA
with respect to any Plan or trust of the Borrower or any member of its
Controlled Group since the effective date of ERISA. The value of the assets of
each Plan (other than a Multiemployer Plan) of the Borrower and each member of
its Controlled Group equaled or exceeded the present value of the benefit
liabilities, as defined in Title IV of ERISA, of each such Plan as of the most
recent valuation date using Plan actuarial assumptions at such date. There are
no pending or, to the best of the Borrower's knowledge, threatened claims,
lawsuits or actions (other than routine claims for benefits in the ordinary
course) asserted or instituted against, and neither the Borrower nor any member
of its Controlled Group has knowledge of any threatened Litigation or claims
against, (i) the assets of any Plan or trust or against any fiduciary of a Plan
with respect to the operation of such Plan, or (ii) the assets of any employee
welfare benefit plan within the meaning of Section 3(1) or ERISA, or against any
fiduciary thereof with respect to the operation of any such plan. None of the
Borrower or any member of its Controlled Group has engaged in any prohibited
transactions, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, in connection with any Plan. None of the Borrower or any member of its
Controlled Group, nor has incurred or reasonably expects to incur (A) any
liability under Title IV of ERISA (other than premiums due under Section 4007 of
ERISA to the PBGC), (B) any withdrawal liability (and no event has occurred
which with the giving of notice under Section 4219 of ERISA would result in such
liability) under Section 4201 of ERISA as a result of a complete or partial
withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a
Multiemployer Plan, or (C) any liability under Section 4062 of ERISA to the PBGC
or to a trustee appointed under Section 4042 of ERISA. None of the Borrower, any
member of its Controlled Group, or any organization to which the Borrower or any
member of its Controlled Group is a successor or parent corporation within the
meaning of ERISA Section 4069(b), has engaged in a transaction within the
meaning of ERISA Section 4069. None of the Borrower or any member of its
Controlled Group maintains or has established any welfare benefit plan within
the meaning of Section 3(1) of ERISA which provides for continuing benefits or
coverage for any participant or any beneficiary of any participant after such
participant's termination of employment except as may be required by the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") and
the regulations thereunder, and at the expense of the participant or the
beneficiary of the participant, or retiree medical liabilities. Each of the
Borrower and its Controlled Group which maintains a welfare benefit plan within
the meaning of Section 3(1) of ERISA has complied in all material respects with
any applicable notice and continuation requirements of COBRA and the regulations
thereunder.
(m) The Borrower is not engaged principally or as one of its important
activities in the business of extending credit for the purpose of purchasing or
carrying any margin stock within the meaning of Regulations 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
57
Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as in effect now or as the same may hereafter be in effect.
(n) As of the Closing Date, the Parent, the Borrower and its Subsidiaries
are in compliance in all material respects with all of the provisions of their
articles of incorporation and by-laws, and no event has occurred or failed to
occur, which has not been remedied or waived, the occurrence or non-occurrence
of which constitutes, or which with the passage of time or giving of notice or
both would constitute, (i) an Event of Default or (ii) a default by the Parent,
the Borrower or any of its Subsidiaries under any material indenture, agreement
or other instrument, or any judgment, decree or order to which the Parent, the
Borrower or any of its Subsidiaries is a party or by which they or any of their
material Properties is bound. After the Closing Date, the Parent, the Borrower
and its Subsidiaries are in compliance in all material respects with all of the
provisions of their articles of incorporation and by-laws, and no event has
occurred or failed to occur, which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, or which with the passage of
time or giving of notice or both would constitute, (i) an Event of Default or
(ii) a default by the Parent, the Borrower or any of its Subsidiaries under any
material indenture, agreement or other instrument, or any judgment, decree or
order to which the Parent, the Borrower or any of its Subsidiaries is a party or
by which they or any of their material Properties is bound, that could
reasonably be expected to cause a Material Adverse Change.
(o) The Borrower is not required to register under the provisions of the
Investment Company Act of 1940, as amended. Neither the entering into or
performance by the Borrower of this Agreement nor the issuance of the Notes
violates any provision of such act or requires any consent, approval, or
authorization of, or registration with, the Securities and Exchange Commission
or any other governmental or public body of authority pursuant to any provisions
of such act.
(p) On the Closing Date, none of the Borrower nor any Subsidiary of the
Borrower has any actual knowledge or reason to believe that any substance deemed
hazardous by any applicable Environmental Law, has been installed on any real
property now owned by the Parent, the Borrower or any of its Subsidiaries,
except (i) for hazardous substances the presence of which is not in violation of
law and (ii) as disclosed to the Lenders. After the Closing Date, none of the
Parent, the Borrower nor any Subsidiary of the Borrower has any actual knowledge
or reason to believe that any substance deemed hazardous by any applicable
Environmental Law, has been installed in violation of law on any real property
now owned by the Parent, the Borrower or any of its Subsidiaries except as
disclosed to the Lenders and which would not, in the reasonable judgment of the
Borrower, cause a Material Adverse Change. As of the Closing Date, the Borrower
and its Subsidiaries are not in violation of or subject to any existing, pending
or, to the best of the Borrower's knowledge, threatened investigation or inquiry
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,
58
threatened investigation or inquiry by any governmental authority or to any
material remedial obligations under any applicable Environmental Laws which
could cause a Material Adverse Change, and this representation and warranty
would continue to be true and correct following disclosure to the applicable
governmental authorities of all relevant facts, conditions and circumstances, if
any, pertaining to any real property of the Parent, the Borrower and its
Subsidiaries. The Parent, the Borrower and its Subsidiaries are not required to
obtain any permits, Licenses or similar authorizations to construct, occupy,
operate or use any buildings, improvements, fixtures, and equipment forming a
part of any real property of the Parent, the Borrower or any Subsidiary of the
Borrower by reason of any applicable Environmental Laws, except those that have
been obtained. As of the Closing Date, the Borrower and its Subsidiaries have no
actual knowledge or reason to believe, after reasonable investigation, that any
hazardous substances or solid wastes have been disposed of or otherwise released
on or to the real property of the Parent, the Borrower or any of its
Subsidiaries in violation of any applicable Environmental Law. After the Closing
Date, the Parent, the Borrower and its Subsidiaries have no actual knowledge or
reason to believe, that any hazardous substances or solid wastes have been
disposed of or otherwise released on or to the real property of the Parent, the
Borrower or any of its Subsidiaries, within the meaning of the applicable
Environmental Laws, except as disclosed to the Lenders and which such disposal
or release would not cause a Material Adverse Change.
(q) The agreements evidencing obligations with respect to Capital Leases
have been duly authorized, executed and delivered by the Parent, Borrower or its
Subsidiaries, as applicable, and (to the best of the Borrower's knowledge) the
other parties thereto. Except as disclosed to each Lender, there is no
Litigation, or, to the best of the Borrower's knowledge, threatened Litigation
or pending or threatened claim of breach or default, with respect to any such
Capital Lease obligations that could be expected to adversely affect any such
lease or contract. There is no Litigation, or, to the best of the Borrower's
knowledge, threatened Litigation or pending or threatened claim of breach or
default, with respect to any loan agreement or document evidencing any Debt for
Borrowed Money of the Parent, the Borrower, or their Subsidiaries that has not
been disclosed to Lenders. The Borrower has no knowledge of any default by any
tenant or tenants under any Tenant Leases which aggregate five percent or more
of the revenues of the Borrower and its Subsidiaries, except as disclosed to the
Lenders. The Borrower has no notice of or belief that any party to any material
Capital Lease is contemplating a breach, default or termination for any reason
of such contract or lease, except as disclosed to the Lenders. As of the
Closing Date, the Borrower has provided, or caused to be provided, to the
Administrative Agent complete and correct copies of or access to the Capital
Leases, all as amended, together with all exhibits and schedules thereto.
(r) All Pledged Stock has been duly authorized and validly issued, and is
fully paid and nonassessable. The Capital Stock described on Exhibit A to
Borrower Pledge Agreement constitutes all the issued and outstanding Capital
Stock of the Subsidiaries of the Borrower or the Subsidiaries of another
Subsidiary, except such shares that have been issued after the Closing Date,
pledged to the Administrative Agent to secure the Obligations and delivered to
the Administrative Agent together with stock powers executed in blank. All
Capital Stock of the Borrower is pledged to the Administrative Agent on behalf
of Lenders to secure the Obligations. No Person has conversion rights with
respect to, or any subscription rights, calls, commitments
59
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
Commitments or the Advances hereunder. The Borrower agrees to indemnify and
hold harmless the Administrative Agent and each Lender from and against any
claims, demand, liability, proceedings, costs or expenses asserted with respect
to or arising in connection with any such fees or commissions.
(t) No event has occurred which permits (or with the passage of time would
permit) the revocation or termination of any material License, or which could
result in the imposition of any restriction thereon of such a nature that could
reasonably be expected to constitute a Material Adverse Change.
(u) The Parent, the Borrower and its Subsidiaries have obtained all
material patents, trademarks, service-marks, trade names, copyrights, Licenses
and other rights, free from burdensome restrictions, that are necessary for the
operation of their business as presently conducted and as proposed to be
conducted. Nothing has come to the attention of the Borrower or any of its
Subsidiaries to the effect that (i) any process, method, part or other material
presently contemplated to be employed by the Parent, Borrower or any Subsidiary
of the Borrower may infringe any patent, trademark, service-xxxx, trade name,
copyright, License or other right owned by any other Person, or (ii) there is
pending or overtly threatened any claim or Litigation against or affecting the
Borrower or any Subsidiary of the Borrower contesting its right to sell or use
any such process, method, part or other material, which could reasonably be
expected to cause a Material Adverse Change.
(v) Neither this Agreement nor any other document, certificate or statement
which has been furnished to any Lender by or on behalf of the Parent, the
Borrower or any Subsidiary of the Borrower in connection herewith contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statement contained herein and therein not
misleading at the time it was furnished. On the Closing Date, there is no fact
known to the Borrower and not known to the public generally that could
reasonably be expected to cause a Material Adverse Change, which has not been
set forth in this Agreement or in the documents, certificates and statements
furnished to the Lenders by or on behalf of the Borrower prior to the date
hereof in connection with the transaction contemplated hereby. On each date
after the Closing Date on which this representation is deemed to be made, there
is no fact known to the Borrower and not known to the public generally that
could reasonably be expected to cause a Material Adverse Change, which has not
been disclosed to the Lenders in writing.
(w) There exists no breach or default by any party under any Tenant Lease,
except (i) those disclosed to the Administrative Agent in writing, and (ii)
breaches of any Tenant Lease, or all breaches of Tenant Leases in the aggregate,
that could not cause a Material Adverse Change. All Tenant Leases in existence
on the Closing Date are listed on Schedule 5.01(w) hereto, together with the
----------------
lease rate for each such Tenant Lease, the date of termination of each such
Tenant Lease, and whether such Tenant Lease is a Oral Lease. No Tenant Lease is
a Oral Lease,
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except, if the Borrower is in compliance with Section 6.15(c) below, the
Borrower may have Oral Leases that are disclosed to the Lenders in connection
with Section 7.07 below and accurately included in all calculations pursuant to
Sections 6.15(a) and (c) below.
(x) All Ground Leases are in full force and effect, and, as of the
Closing Date, there exists no breach or default by any party under any Ground
Lease, except those disclosed to the Administrative Agent in writing. All Ground
Leases in existence on the Closing Date are listed on Schedule 5.01(x) hereto,
----------------
together with the lease rate for each such Ground Lease, the date of termination
of each such Ground Lease and the Tower Cash Flow generated from the Tower on
each such Ground Lease, in each case, as of the Closing Date.
(y) Each piece of owned real property in existence on the Closing Date is
listed on Schedule 5.01(y) hereto, together with the Tower Cash Flow related to
----------------
such piece of real property. After the expiration of 90 days after the Closing
Date, all real property owned by the Borrower or any Subsidiary for more than 90
days is subject to a mortgage and/or deed of trust and otherwise complies with
all requirements set forth with respect to owned real property in Section 6.15
hereof.
(z) Either (i) Parent (A) qualifies as a real estate investment trust, as
defined in Section 856(a) of the Code, and satisfies the conditions and
limitations set forth in Sections 856(b) and 856(c) of the Code, (B) has not
engaged in any "prohibited transactions" as defined in Section 857(b)(6)(B)(iii)
and (C) of the Code and (C) for its current "tax year" (as defined in the Code)
is and for all prior tax years subsequent to its election to be a real estate
investment trust has been entitled to a dividends paid deduction under the
requirements of Section 857 of the Code. Borrower and each of the Subsidiaries
of Borrower is a Qualified REIT Subsidiary, or (ii) the Borrower has delivered
written notice to the Administrative Agent in accordance with the terms of
Section 7.04(e) hereof, that a REIT Conversion has occurred.
(aa) On each date after the Closing Date on which this representation is
deemed to be made, no event has occurred and no circumstance exists, which by
itself or aggregated together with all other such events or circumstances is
likely to (i) reduce Tower Cash Flow in the aggregate for all Towers by five
percent or more for a period in excess of three months, or (ii) otherwise cause
a Material Adverse Change.
(bb) The Motorola Acquisition is 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 any Applicable Law in connection with the Motorola
Acquisition and have received all necessary or required approvals and consents
with respect to the Motorola Acquisition, which such consents and approvals are
final, and are in all material respects in compliance therewith. 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 by
Motorola or its Subsidiaries or the Parent, the Borrower and its Subsidiaries.
The Parent, the Borrower and its Subsidiaries have or will have good and
indefeasible title to, or a valid leasehold interest in, all assets being
purchased from Motorola in connection with the Motorola Acquisition, free and
clear of all Liens and security interests, except Permitted Liens and Liens
permitted under Section 8.03
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hereof . 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 Motorola or any of its
Subsidiaries regarding or relating to the Motorola Acquisition or the assets of
Motorola being purchased by the Borrower, or in any other manner relating
directly and materially adversely to the Parent, the Borrower, any of its
Subsidiaries, or Motorola or any of its Subsidiaries in connection with the
assets being sold by Motorola, in any court or before any arbitrator of any kind
or before or by any governmental body. The Borrower has furnished or caused to
be furnished to the Lenders copies of audited financial statements of Motorola
at December 31, 1998, which are prepared in good faith and complete in all
material respects and present fairly in all material respects and in accordance
with GAAP, the financial position of the Motorola as at such dates and the
results of operations for the periods then ended. Motorola has no material
liabilities, contingent or otherwise, nor material losses, except as disclosed
on such financial statements.
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 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 any portion
of either of the Commitments 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 agreements to which
each is a party.
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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 and
complete records of its respective assets. The Borrower and each of its
Subsidiaries shall maintain a fiscal year ending on December 31.
6.05. Insurance . The Borrower shall, and shall cause the Parent and
each Subsidiary of the Borrower to, maintain insurance from responsible
companies in such amounts and against such risks as shall be customary and usual
in the industry for companies of similar size and capability, but in no event
less than the amount and types insured as of the Closing Date, provided that,
the Borrower is permitted to self insure the replacement value of Towers having
in the aggregate at any one time insurable values not more than 5% of the
aggregate insurable values for all Towers. Each insurance policy shall provide
for at least 30 days' prior notice to the Administrative Agent of any proposed
termination or cancellation of such policy, whether on account of default or
otherwise and all property insurance shall name the Administrative Agent as loss
payee or additional insured, as appropriate.
6.06. Payment of Taxes and Claims . The Borrower shall, and shall cause
the Parent and each Subsidiary of the Borrower to, pay and discharge all Taxes,
assessments and governmental charges or levies imposed upon it or its income or
Properties prior to the date on which penalties attach thereto, and all lawful
material claims for labor, materials and supplies which, if unpaid, might become
a Lien upon any of their Properties, except those Taxes, assessments and charges
contested by the Borrower diligently in good faith, and for which adequate
reserves have been established in accordance with GAAP. The Borrower shall, and
shall cause the Parent and each Subsidiary of the Borrower to, timely file all
information returns required by federal, state or local Tax authorities.
6.07. Visits and Inspections . The Borrower shall, and shall cause each
Subsidiary of the Borrower and the Parent to, promptly permit representatives of
the Administrative Agent or any Lender from time to time to (a) visit and
inspect the Properties of the Parent, the Borrower and each Subsidiary of the
Borrower as often as the Administrative Agent or any Lender shall deem
advisable, (b) inspect and make extracts from and copies of the Borrower's, the
Parent's and each Subsidiary of the Borrower's books and records, and (c)
discuss with the Parent's, the Borrower's and each Subsidiary's directors,
officers, employees and, after notice to the Borrower, the auditors of Borrower
and the Parent, its business, assets, liabilities, financial positions, results
of operations and business prospects.
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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.
6.09. Use of Proceeds. The Borrower shall use the proceeds of Advances
solely as set forth in Section 2.15 hereof.
6.10. Indemnity.
(a) The Borrower agrees to defend, protect, indemnify and hold harmless
the Administrative Agent, each Lender, each of their respective Affiliates, and
each of their respective (including such Affiliates') officers, directors,
employees, agents, attorneys, shareholders and consultants (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth herein) of each of the foregoing
(collectively, "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees (whether
direct, indirect or consequential and whether based on any federal, state, or
local laws and regulations, under common law or at equitable cause, or on
contract, tort or otherwise, arising from or connected with the past, present or
future operations of the Borrower or its predecessors in interest, in any manner
relating to or arising out of this Agreement, the Loan Papers, or any act, event
or transaction or alleged act, event or transaction relating or attendant
thereto, the making of any participations in the Advances and the management of
the Advances, including in connection with, or as a result, in whole or in part,
of any negligence of Administrative Agent or any Lender (other than those
matters raised exclusively by a participant against the Administrative Agent or
any Lender and not the Borrower), or the use or intended use of the proceeds of
the Advances hereunder, or in connection with any investigation of any potential
matter covered hereby, but excluding 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 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
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and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Borrower, the Administrative Agent, the Lenders and all
other Indemnitees. This Section shall survive any termination of this Agreement
and payment of the Obligations.
6.11. Environmental Law Compliance. The use which the Parent, the
Borrower or any Subsidiary of the Borrower intends to make of any real Property
owned by it will not result in the disposal or other release of any hazardous
substance or solid waste on or to such real Property in violation of any
Environmental Law. As used herein, the terms "hazardous substance" and
"release" as used in this Section shall have the meanings specified in CERCLA
(as defined in the definition of applicable Environmental Laws), and the terms
"solid waste" and "disposal" shall have the meanings specified in RCRA (as
defined in the definition of applicable Environmental Laws); provided, however,
that if CERCLA or RCRA is amended so as to broaden the meaning of any term
defined thereby, such broader meaning shall apply subsequent to the effective
date of such amendment; and provided further, to the extent that any other law
applicable to the Parent, the Borrower, any Subsidiary of the Borrower or any of
their Properties establishes a meaning for "hazardous substance," "release,"
"solid waste," or "disposal" which is broader than that specified in either
CERCLA or RCRA, such broader meaning shall apply. The Borrower agrees to
indemnify and hold the Administrative Agent and each Lender harmless from and
against, and to reimburse them with respect to, any and all claims, demands,
causes of action, loss, damage, liabilities, costs and expenses (including
attorneys' fees and courts costs) of any kind or character, known or unknown,
fixed or contingent, asserted against or incurred by any of them at any time and
from time to time by reason of or arising out of (a) the failure of the Parent,
the Borrower or any Subsidiary of the Borrower to perform any obligation
hereunder regarding asbestos or applicable Environmental Laws, (b) any violation
on or before the Release Date of any applicable Environmental Law in effect on
or before the Release Date, and (c) any act, omission, event or circumstance
existing or occurring on or prior to the Release Date (including without
limitation the presence on such real Property or release from such real Property
of hazardous substances or solid wastes disposed of or otherwise released on or
prior to the Release Date), resulting from or in connection with the ownership
of the real Property, regardless of whether the act, omission, event or
circumstance constituted a violation of any applicable Environmental Law at the
time of its existence or occurrence, or whether the act, omission, event or
circumstance is caused by or relates to the negligence of any indemnified
Person; provided that, the Borrower shall not be under any obligation to
indemnify the Administrative Agent or any Lender to the extent that any such
liability arises as the result of the gross negligence or willful misconduct of
such Person, as finally judicially determined by a court of competent
jurisdiction, or for any event which is both not caused by the Parent, the
Borrower or any Subsidiary of the Borrower and occurs after any foreclosure by
the Lenders on any specific Property. The provisions of this paragraph shall
survive the Release Date and shall continue thereafter in full force and effect.
6.12. Interest Rate Protection Agreements. By no later than September
30, 1999, the Borrower will enter into an Interest Rate Protection Agreement on
terms acceptable to the Administrative Agent providing for interest rate
protection for one year for 50% of the principal of the Obligations outstanding
on September 30, 1999, and the Borrower shall thereafter, until the third
anniversary of the Closing Date, maintain an Interest Rate Protection Agreement
in
65
effect at all times on terms acceptable to the Administrative Agent and
providing for an interest rate protection for not less than 50% of the entire
principal of the Obligations.
6.13. Issuance and Pledge of Capital Stock of the Borrower. Prior to or
simultaneous with the issuance by the Borrower of any Capital Stock to any
Person, the Borrower shall, and shall cause the Parent to, cause such Capital
Stock to be pledged to the Administrative Agent 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 will either (a) (i) continue to be qualified as a real
estate investment trust as defined in Section 856 of the Code, (ii) not engage
in any "prohibited transactions" as defined in Section 857(b)(6)(B)(iii) or (C)
of the Code, (iii) continue to satisfy the conditions and limitations set forth
in Sections 856(b) and 856(c) of the Code and (iv) will do all acts necessary to
continue to be entitled to a dividend paid deduction under Section 857 of the
Code, or (b) elect to not maintain its REIT Status and notify the Administrative
Agent and each Lender of its decision in writing in accordance with the
provisions of Section 7.04(e) hereof. The Borrower and each of its Subsidiaries
will either (a) continue to be a Qualified REIT Subsidiary so long as the Parent
remains a REIT, or (b) elect not to qualify as a Qualified REIT Subsidiary and
notify the Administrative Agent and each Lender of its decision in writing in
accordance with the provisions of Section 7.04(e) hereof.
6.15. Tenant Leases, Ground Leases and Fee Owned Property.
(a) Tenant Leases and Fee Owned Properties. The Borrower and each
--------------------------------------
Subsidiary of the Borrower shall, after the Closing Date, only enter into new
Tenant Leases, acquire new Tenant Leases or become party to any Tenant Leases
which are not Oral Leases provided that, the Borrower is permitted to have Oral
Leases so long as the sum of the aggregate Tenant Lease Revenues from all Oral
Leases, at no time after the 90th day after the Closing Date exceeds 10% of the
total revenues of the Borrower and its Subsidiaries for the most recently
completed calendar month during the term of this Agreement. The Borrower
covenants that it will use commercially reasonable efforts to insure that each
Tenant Lease (a) is not oral and is subject to written agreement, (b) does not
prohibit or render unenforceable or void any Lien of the Administrative Agent or
any foreclosure and/or operation of the Tower on which such Tenant Lease is
located by the Lenders, whether by contractual provision, operation of law or
otherwise, and (c) does not have any provision preventing, hindering or
prohibiting the Administrative Agent from directly receiving the rents,
receivables or other Tenant Lease Revenues from the lessee (or the effect of
which prevents, hinders or prohibits such action by the operation of Law). The
Borrower shall use commercially reasonable efforts to immediately provide the
Lenders with each item for each piece of real fee owned real Property 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.
(b) Ground Leases. The Borrower and each Subsidiary of the Borrower
-------------
shall, after the Closing Date, use its best efforts to only enter into new
Ground Leases which are
66
substantially in the form set forth on Exhibit K hereto, or with such other
---------
provisions as are approved by the Administrative Agent in writing. The Borrower
shall use commercially reasonable efforts to immediately provide the Lenders
with respect to each Ground Lease, Estoppel and Attornment Language immediately
after each Permitted Acquisition including the Motorola Acquisition or other
creation or acquisition of any real Property by the Borrower or any Subsidiary
of the Borrower.
(c) Breach of Section 6.15(a) above. In the event any provision of Section
-------------------------------
6.15(a) above is breached, subject to the last sentence of this Section 6.15(c),
the Applicable Margin shall increase by .25% per annum, effective the date of
such breach under Section 6.15(a) above, and shall increase every 30 days
thereafter (effective each 31st date following the preceding increase) by .25%
per annum (but in no event shall the interest rate increase under this Section
6.15(c) by more than .25% per annum per 30 day period) until the earlier of (i)
compliance with this Section 6.15, or (ii) such time as the per annum interest
rate is equal to the Highest Lawful Rate (where the interest rate will remain
until the Borrower is in compliance). If, on the date six months after the date
of any breach, such breach is still in effect, then all Tenant Lease Revenues
from any Oral Lease in excess of the fifteen percent limitation, will be
excluded from revenues for the purpose of determining EBITDA in connection with
any determination of (I) the Leverage Ratio (with respect to the determination
of Section 8.01(a) hereof and the Applicable Margin), the Consolidated Leverage
Ratio in Section 8.01(b) hereof, the consolidated interest coverage ratio set
forth in Section 8.01(c) hereof, the pro forma debt service coverage ratio set
forth in Section 8.01(d) hereof and the fixed charge coverage ratio set forth in
Section 8.01(e) hereof, and such exclusion from EBITDA for such purposes will
continue until five Business Days after the date the Borrower delivers to the
Administrative Agent a certificate of an Authorized Officer certifying that
there exists no breach under Section 6.15(a) above, in detail satisfactory to
the Administrative Agent. If there exists no Default or Event of Default upon
giving effect to any exclusion from EBITDA in accordance with the provisions set
forth above, the interest rate shall be calculated without giving effect to any
increase in the Applicable Margin set forth in this Section 6.15(c).
(d) Real Estate Collateral.
----------------------
(i) Fee Owned Property. The Borrower shall, within 60 days after the
------------------
acquisition by the Borrower or any of its Subsidiaries of any owned real
property, provide or cause to be provided to the Administrative Agent on
behalf of itself and the Lenders with a first and prior mortgage or deed of
trust for each such property securing the Obligations in form and substance
substantially similar to the previously filed mortgages/deeds of trust.
The Borrower also agrees to provide (or to cause to be provided) all such
documents and instruments required by the Administrative Agent to fully
effect the foregoing, including, without limitation, providing the
Administrative Agent with UCC-1's, new security agreements, mortgages,
deeds of trust, appraisals, surveys, hazard insurance, UCC-11 searches, Tax
and Lien searches, intellectual property documentation and registration and
other similar types of documents, consents, authorizations, Licenses,
instruments and agreements relating to all Property of the Borrower and its
Subsidiaries as reasonably requested by the Administrative Agent from time
to time.
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(ii) Leasehold Property. The Borrower shall use commercially reasonable
------------------
efforts to deliver to the Administrative Agent, within 60 days after each
Permitted Acquisition, a list of each leasehold site acquired by the
Borrower, the purpose each such leased site serves and Estoppel and
Attornment Language for each such site.
(iii) Fee Owned Property Existing on the Closing Date. With respect to
-----------------------------------------------
fee owned property of the Borrower and its Subsidiaries in existence on the
Closing Date and not subject to a mortgage or deed of trust on the Closing
Date, all such property shall be treated as if such property were acquired
on the Closing Date in order to determine compliance with Section
6.15(d)(i) above.
6.16. Acquisitions, Generally. In connection with any acquisition made by
the Borrower during the term of this Agreement, the Borrower shall, in addition
to the requirements set forth in Sections 4.04, 6.15 and 6.18 (to the extent
applicable) hereof, with respect to individual Permitted Acquisitions in excess
of $20,000,000 and any series of related Permitted Acquisitions which in the
aggregate exceed $20,000,000, (a) deliver notice to Administrative Agent at such
time prior to the proposed acquisition date as is reasonable under the
circumstances, together with (or, the following may be delivered later than the
notice (but still prior to the proposed acquisition), so long as such delivery
is reasonable under the circumstances, and copies of agreements are delivered
promptly upon execution of each such agreement: (i) a detailed description of
the proposed Permitted Acquisition in form reasonably acceptable to the
Administrative Agent, a description and location of all fee owned real property,
all Towers and all other assets (together with all legal descriptions of all
real property (fee owned) available at such time), (ii) the address of any
office acquired, (iii) the most recent financial statements with respect to the
acquired assets and/or Person, and to the extent available, the most recent
audited financial statements, and (iv) a copy of the purchase agreement,
schedules thereto and all related documentation (unless such schedules or
documentation are to be delivered by the seller, in which case the Borrower
shall deliver drafts and originals of such schedules and documentation promptly
upon receipt by the Borrower if later than ten days prior to closing), and (b)
prior to the consummation of the acquisition a statement certified by an
Authorized Officer that (i) the proposed transaction complies with the
definition of Permitted Acquisition set forth in Article I hereof, and (ii) no
Default or Event of Default exists prior to or after giving effect to any
requested Advance or the consummation of such acquisition, or will exist upon
consummation of the proposed acquisition and related borrowings and
transactions, together with a pro forma Compliance Certificate computed after
giving effect to such acquisition and borrowings (A) for acquisitions having
purchases prices in excess of $20,000,000 but less than $50,000,000, evidencing
compliance with the terms of this Agreement for the lesser of two years after
the consummation of the proposed acquisition or the remainder of the term of
this Agreement, together with all projections of the Parent, the Borrower and
any acquired assets and/or Person used to compute the Compliance Certificate and
(B) for acquisitions having purchases prices in excess of $50,000,000,
evidencing compliance with the terms of this Agreement for the remainder of the
term of this Agreement, together with all projections of the Parent, the
Borrower and any acquired assets and/or Person used to compute the Compliance
Certificate.
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6.17. Year 2000. The Borrower has (a) undertaken a detailed review and
assessment of all areas within its business and operations that could be
adversely affected by the "Year 2000 Problem" (that is, the risk that computer
applications used by the Borrower may be unable to recognize and perform
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").
6.18. Motorola Acquisition. The Borrower shall consummate the Motorola
Acquisition not later than October 31, 1999 and such Motorola Acquisition shall
(a) have a total purchase price not in excess of $255,000,000 plus normal
prorated adjustments, and (b) be consummated in accordance with the terms and
provisions of the Acquisition Agreement and upon other terms and conditions
proposed by Motorola and the Borrower as are reasonably acceptable to the
Administrative Agent and the Majority Lenders in their reasonable discretion.
Prior to or concurrent with, as applicable, the consummation of the Motorola
Acquisition, the Borrower shall comply with all provisions of Section 4.04
hereof, Section 6.16 hereof and Section 2.16(b) hereof, and the Administrative
Agent shall have a Lien to secure the Obligations on all such assets acquired in
connection with the Motorola Acquisition contemplated by Section 2.16 hereof to
be granted to the Administrative Agent. Notwithstanding anything in this
Agreement or in any other Loan Paper to the contrary, in the event that the
Motorola Acquisition is not consummated in accordance with the terms of the
Acquisition Agreement by October 31, 1999, then, the Borrower and the Parent
agree that, not later than November 30, 1999, Section 2.06(d) and Section
2.11(b) of this Agreement and the Loan Papers shall have been renegotiated by
the Parent, the Borrower, the Administrative Agent and BAS, to the reasonable
satisfaction of the Administrative Agent and BAS.
6.19. Notice by the Borrower. The Borrower shall immediately notify the
Administrative Agent in writing of the consummation of the Motorola Acquisition
in accordance with the terms of Section 6.18 hereof.
6.20. Syndication of the Loans. The Borrower agrees to enter into any
amendment of this Agreement and any Loan Paper in connection with any
syndication of the Loans as requested by the Administrative Agent to (a) add
Lenders with titles as agreed to by the Administrative Agent and (b) make any
other reasonably requested changes to this Agreement and the Loan Papers by any
proposed or new Lender or the Administrative Agent. The Borrower further agrees
to comply over the term of this Agreement with all provisions of the Commitment
Letter which specifically state that they shall survive the closing and
consummation of the Loans..
6.21. Additional Equity and/or Subordinated Debt. The Borrower agrees
that, by December 31, 1999 (a) the Borrower shall have received proceeds
contributed by the Parent to the Borrower as equity in an aggregate amount after
the date hereof (including the $30,000,000 the Borrower is required to receive
prior to the Motorola Acquisition in accordance with the
69
terms of Section 4.04(g) hereof) not less than $100,000,000, and (b) the Parent
shall have received not less than $100,000,000 in net proceeds from the issuance
of unsecured public Debt of the Parent, Bridge Debt of the Parent or equity of
the Parent prior to December 31, 1999, in each case issued in accordance with
the provisions of Section 8.02(c) hereof and Section 8.11 hereof, as applicable.
ARTICLE VII. INFORMATION COVENANTS
So long as any of the Obligations are outstanding and unpaid or any portion
of either of the Commitments or any Letter of Credit is outstanding (whether or
not the conditions to borrowing have been or can be fulfilled), the Borrower
shall furnish or cause to be furnished to each Lender:
7.01. Quarterly Financial Statements and Information. Within 45 days
after the end of each fiscal quarter, consolidated and consolidating balance
sheets of Parent, the Borrower and its Subsidiaries as at the end of such
quarter and the related consolidated and consolidating statements of income and
consolidated statements of changes in cash for such quarter and for the elapsed
portion of the year ended with the last day of such quarter, all of which shall
be certified by an Authorized Officer, to, in his or her opinion, present fairly
in all material respects, in accordance with GAAP, the financial position and
results of operations of the Parent, the Borrower and its Subsidiaries as at the
end of and for such period, and for the elapsed portion of the year ended with
the last day of such period.
7.02. Annual Financial Statements and Information; Certificate of No
Default.
(a) Within 120 days after the end of each fiscal year, a copy of (i) the
consolidated balance sheet of the Parent, the Borrower and its Subsidiaries, as
of the end of the current and prior fiscal years and (ii) consolidated
statements of earnings, statements of changes in shareholders' equity, and
statements of changes in cash as of and through the end of such fiscal year, all
of which are prepared in accordance with GAAP, and certified by independent
certified public accountants acceptable to the Lenders, whose opinion shall be
in scope and substance in accordance with generally accepted auditing standards
and shall be unqualified.
(b) As soon as available, but in any event within 60 days following the
end of each fiscal year, a copy of the annual consolidated operating budget of
the Borrower, the Parent, and its Subsidiaries for the succeeding fiscal year.
7.03. Compliance Certificates. At the time financial statements are
furnished pursuant to Section 7.01 hereof and Section 7.02 hereof, a Compliance
Certificate.
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
70
comment letter submitted to management in connection with any such audit, (ii)
each financial statement, report, notice or proxy statement sent by the Parent,
the Borrower or any Subsidiary of the Borrower to stockholders generally, (iii)
each regular or periodic report and any registration statement or prospectus (or
material written communication in respect of any thereof) filed by the Parent,
the Borrower or any Subsidiary of the Borrower with any securities exchange,
with the Securities and Exchange Commission or any successor agency, and (iv)
all press releases concerning material financial aspects of the Parent, the
Borrower or any Subsidiary of the Borrower;
(b) Promptly upon becoming aware that (i) the holder(s) of any note(s) or
other evidence of indebtedness or other security of the Parent, the Borrower or
any Subsidiary of the Borrower in excess of $250,000 in the aggregate has given
notice or taken any action with respect to a breach, failure to perform, claimed
default or event of default thereunder, (ii) any party to any material Capital
Lease of the Borrower or any Subsidiary of the Borrower has given notice or
taken any action with respect to a breach, failure to perform, claimed default
or event of default thereunder, (iii) any occurrence or non-occurrence of any
event which constitutes or which with the passage of time or giving of notice or
both could constitute a material breach by the Parent, the Borrower or any
Subsidiary of the Borrower under any material agreement or instrument other than
this Agreement to which the Parent, the Borrower or any Subsidiary of the
Borrower is a party or by which any of their Properties may be bound, or (iv)
any event, circumstance or condition which could reasonably be expected to
constitute a Material Adverse Change, a written notice specifying the details
thereof (or the nature of any claimed default or event of default) and what
action is being taken or is proposed to be taken with respect thereto;
(c) Promptly upon receipt thereof, information with respect to and copies
of any notices received from the FCC, the FAA or any other federal, state or
local regulatory agencies or any tribunal relating to any order, ruling, law,
information or policy that relates to a breach of or noncompliance with the
Communications Act, or might result in the payment of money by the Parent, the
Borrower or any Subsidiary of the Borrower in an amount of $250,000 or more in
the aggregate, or otherwise constitute a Material Adverse Change, or result in
the loss or suspension of any material License;
(d) Promptly upon receipt from any governmental agency, or any government,
political subdivision or other entity, any material notice, correspondence,
hearing, proceeding or order regarding or affecting the Parent, the Borrower,
any Subsidiary of the Borrower, or any of their Properties or businesses not in
the ordinary course of business, a copy of such notice, correspondence, hearing,
proceeding or order;
(e) Promptly upon and in any event within forty-eight hours after the
Borrower first has knowledge of (i) the Parent failing to or electing to, as
appropriate, (A) continue to qualify as 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
71
challenge by the Internal Revenue Service to the Parent's REIT Status, (vii) the
Borrower or any Subsidiary of Borrower failing to be a Qualified REIT
Subsidiary, (viii) any challenge by the Internal Revenue Service to the status
of Borrower or any Subsidiary of Borrower as a Qualified REIT Subsidiary, or
(ix) any other REIT Conversion, immediate telephonic and subsequent written
notice within forty-eight hours of any such occurrence or circumstance; and
(f) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the assets, business, liabilities, financial position, projections, results of
operations or business prospects of the Parent, the Borrower and its
Subsidiaries that is within the Borrower's control, as the Administrative Agent
or any Lender may reasonably request.
7.05. Notice of Litigation, Default and Other Matters. Prompt notice of
the following events after the Borrower has knowledge or notice thereof:
(a) The commencement of all proceedings and investigations by or before
the FCC, the FAA or any other governmental body, and all other actions and
proceedings in any court or before any arbitrator involving claims for damages
(including punitive damages) in excess of $250,000 in the aggregate (after
deducting the amount with respect to the Parent, the Borrower or any Subsidiary
of the Borrower is insured), against or in any other way relating directly to
the Parent, the Borrower, any Subsidiary of the Borrower, or any of their
Properties or businesses;
(b) Promptly upon the happening of any condition or event which
constitutes a Default, a written notice specifying the nature and period of
existence thereof and what action is being taken or is proposed to be taken with
respect thereto; and
(c) Any Material Adverse Change with respect to the business, assets,
liabilities, financial position, results of operations or prospective business
of the Parent, the Borrower or any Subsidiary of the Borrower.
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
72
by the Borrower or any member of its Controlled Group of the PBGC's intention to
terminate any Plan or to have a trustee appointed to administer any Plan;
(c) Promptly and in any event within 30 days after the filing thereof by
the Borrower or any member of its Controlled Group with the United States
Department of Labor, the Internal Revenue Service or the PBGC, copies of each
annual and other report (including Schedule B thereto) with respect to each
Plan;
(d) Promptly and in any event within 30 days after receipt thereof, a copy
of any notice, determination letter, ruling or opinion the Borrower or any
member of its Controlled Group receives from the PBGC, the United States
Department of Labor or the Internal Revenue Service with respect to any Plan;
(e) Promptly, and in any event within 10 Business Days after receipt
thereof, a copy of any correspondence the Borrower or any member of its
Controlled Group receives from the Plan Sponsor (as defined by Section
4001(a)(10) of ERISA) of any Plan concerning potential withdrawal liability
pursuant to Section 4219 or 4202 of ERISA, and a statement from the chief
financial officer of the Borrower or such member of its Controlled Group setting
forth details as to the events giving rise to such potential withdrawal
liability and the action which the Borrower or such member of its Controlled
Group is taking or proposes to take with respect thereto;
(f) Notification within 30 days of any material increases in the benefits
of any existing Plan which is not a Multiemployer Plan, or the establishment of
any new Plans, or the commencement of contributions to any Plan to which the
Borrower or any member of its Controlled Group was not previously contributing;
(g) Notification within three Business Days after the Borrower or any
member of its Controlled Group knows or has reason to know that the Borrower or
any such member of its Controlled Group has or intends to file a notice of
intent to terminate any Plan under a distress termination within the meaning of
Section 4041(c) of ERISA and a copy of such notice; and
(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.
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7.07. Fee Owned Property, Ground Leases and Tenant Leases.
(a) Quarterly Information Regarding Fee Owned Real Property, Ground
---------------------------------------------------------------
Leases and Tenant Leases. The Borrower shall provide the Administrative Agent
------------------------
and each Lender, with quarterly updates delivered with the Compliance
Certificate as required in Section 7.03 hereof, certifying as to (i) all
existing Ground Leases and fee owned real property of the Borrower and the
Subsidiaries of the Borrower, (ii) the annual charges paid in connection with
fee owned real Property (if any) and Ground Leases of the Borrower and the
Subsidiaries of the Borrower, and the annual revenues generated by each Tower on
each Ground Lease and each fee owned real property, (iii) the termination date
for each such Ground Lease, (iv) whether there exists a material breach or
default by any party to any such Ground Lease (or alleged breach or default),
and (v) a list of all Oral Leases (detailing the reason for non-compliance) and
all Tenant Lease Revenues generated by such Oral Leases, all in form and
substance acceptable to the Administrative Agent. Each such quarterly update
certificate shall be certified by an Authorized Officer that there exists no
breach of Section 6.15 hereof and that there exists no Default or Event of
Default under Section 9.01(s) hereof.
(b) Annual Information Regarding Tenant Leases. The Borrower shall
------------------------------------------
provide the Administrative Agent and each Lender, with annual updates as to all
existing Tenant Leases delivered with the annual information required by Section
7.02 hereof, such information to show the Tenant Lease Revenues with respect to
each Tenant Lease, the termination date for each such Tenant Lease, whether such
Tenant Lease is a Oral Lease (and the reason therefor), and whether there exists
a material breach or default by any party to a (i) material Tenant Lease or (ii)
group of Tenant Leases which is material, all in form and substance acceptable
to the Administrative Agent.
ARTICLE VIII. NEGATIVE COVENANTS
So long as any of the Obligations are outstanding and unpaid or any portion
of either of the Commitments or any Letter of Credit is outstanding (whether or
not the conditions to borrowing have been or can be fulfilled):
8.01. Financial Covenants.
(a) Leverage Ratio. The Borrower shall not permit the Leverage Ratio to
be more than the following ratios at the end of any fiscal quarter during the
time during the following time periods:
Period Ratio
------ -----
From the Closing Date
through September 30, 1999 6.75 to 1.00**
From October 1, 1999
through June 29, 2000 6.50 to 1.00**
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From June 30, 2000
through September 29, 2000 6.00 to 1.00**
From September 30, 2000
through December 30, 2000 5.25 to 1.00**
From December 31, 2000
through March 30, 2001 4.75 to 1.00**
From March 31, 2001
through June 29, 2001 4.50 to 1.00**
From June 30, 2001
through December 30, 2001 4.25 to 1.00**
From December 31, 2001
through December 30, 2002 3.50 to 1.00**
From December 31, 2002
and thereafter 3.00 to 1.00**
**If the Motorola Acquisition has not been consummated by October 31, 1999 in
accordance with the terms of the Acquisition Agreement and this Agreement, in
each case set forth above, the maximum ratio shall be decreased by 0.25.
(b) Consolidated Leverage Ratio. Commencing December 31, 2001, the
Borrower shall not permit the Consolidated Leverage Ratio to be more than the
following ratios at the end of any fiscal quarter during the time during the
following time periods:
Period Ratio**
------ -----
From December 31, 2001
through December 30, 2002 7.50 to 1.00**
From December 1, 2002
through December 30, 2003 6.50 to 1.00**
From December 31, 2003
and thereafter 5.50 to 1.00**
**If the Motorola Acquisition has not been consummated by October 31, 1999 in
accordance with the terms of the Acquisition Agreement and this Agreement, in
each case set forth above, the maximum ratio shall be decreased by 0.25.
(c) Consolidated Interest Coverage Ratio. The Borrower shall not permit,
at the end of any fiscal quarter, the ratio of (i) EBITDA for the preceding
twelve month period to (ii)
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cash Interest Expense for the preceding twelve month period, to be less
than the following ratios during the following time periods:
Period Ratio
------ -----
From the Closing Date
through June 29, 2000 1.75 to 1.00
From June 30, 2000
through December 30, 2000 2.00 to 1.00
From December 31, 2000
through March 30, 2001 2.25 to 1.00
From March 31, 2001
and thereafter 2.50 to 1.00
(d) Consolidated Pro Forma Debt Service Coverage Ratio. The Borrower
shall not permit at the end of any fiscal quarter the ratio of (a) Annualized
EBITDA to (b) Pro Forma Debt Service to be less than 1.50 to 1.00.
(e) Consolidated Fixed Charge Coverage Ratio. On March 31, 2001 and for
each fiscal quarter thereafter, the Borrower shall not permit at the end of any
fiscal quarter the ratio of (a) EBITDA for the most recently completed twelve
month period to (b) Fixed Charges paid in cash during the most recently
completed twelve month period, to be less than 1.25 to 1.00.
(f) Capital Expenditures. The Borrower shall not permit Capital
Expenditures made by the Parent, the Borrower and its Subsidiaries in the fiscal
year 2000 to exceed $61,000,000.
8.02. Debt for Borrowed Money. The Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower to, create, assume, incur or
otherwise become or remain obligated in respect of, or permit to be outstanding,
or suffer to exist any Debt for Borrowed Money or any preferred stock, except:
(a) with respect to the Borrower and its Subsidiaries, Debt for Borrowed
Money under the Loan Papers;
(b) with respect to the Borrower, Debt for Borrowed Money described on
Schedule 8.02 hereto attached hereto in the principal amounts and as such Debt
-------------
for Borrowed Money exists as of the Closing Date;
(c) provided that no Default or Event of Default exists or would result
from the incurrence thereof and that the net proceeds of any such Debt issuance
be downstreamed by the Parent to the Borrower as equity, the Parent may, so long
as the aggregate amount of Second
76
Parent Issuance and the Bridge Debt incurred pursuant to subsections (i) and
(ii) below in the aggregate over the term of this Agreement do not exceed
$250,000,000 AND at no time shall the aggregate amount of outstanding Debt under
subsections (i) and (ii) below exceed $200,000,000 (except in connection with
any accretion), elect to:
(i) issue unsecured public Debt for Borrowed Money up to the maximum
aggregate amount at any one time outstanding of $200,000,000, except with
respect to any accretion (the "Second Parent Issuance"), and which such
Debt, notwithstanding the foregoing, (i) must be on terms and conditions
substantially similar to the Parent Senior Notes and the Parent Senior
Notes Documentation, (ii) may not be subject to an interest rate in excess
of 13.5% per annum, (iii) must have a scheduled maturity date not earlier
than the Final Maturity Date, and must not be subject to any mandatory
repurchase, redemption, defeasance or any similar provision prior to the
Final Maturity Date, except to the extent there exists a Change of Control,
and in such event such Debt must provide for the repayment in full of the
Obligations prior to such redemption, repurchase, repayment or other
provision, (iv) may not contain covenants or other provisions more
restrictive than this Agreement and the other Loan Papers (including the
definitions), and may not prohibit any action or omission with respect to
this Agreement and the Loan Papers, and (v) shall provide for no principal
payments until the Obligations have been paid in full, and in-kind interest
payments only for a period of not less than the first five years after its
issuance; and
(ii) incur unsecured Debt for Borrowed Money up to the maximum
aggregate amount at any one time outstanding of $50,000,000, except with
respect to any accretion (the "Bridge Debt"), and which such Debt,
notwithstanding the foregoing (i) must be payment in kind only, and not
subject to any cash interest payments, principal payments, fees or
otherwise, (ii) must have a scheduled maturity date not earlier than the
Final Maturity Date, (iii) must not be subject to any mandatory repurchase,
redemption, defeasance or any similar provision prior to the Final Maturity
Date and (iv) may not contain covenants or other provisions more
restrictive than this Agreement and the other Loan Papers (including the
definitions), and may not prohibit any action or omission with respect to
this Agreement and the Loan Papers;
(d) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower and the Parent,
unsecured Debt for Borrowed Money not to exceed $5,000,000 in the aggregate for
the Borrower and the Parent throughout the term of this Agreement;
(e) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower and the Parent,
secured Debt for Borrowed Money not to exceed $5,000,000 in the aggregate for
the Borrower and the Parent throughout the term of this Agreement;
(f) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower, accrued but unpaid
Earn-Out Liabilities;
77
(g) provided that no Default or Event of Default exists or would result
from the incurrence thereof, in addition to the Subordinated Debt the Parent is
entitled to incur in accordance with the terms of Section 8.02(c) above, if
there has not occurred a REIT Conversion, the Parent may incur Subordinated Debt
to the Shareholders, such Subordinated Debt not to exceed in principal face
amount in the aggregate for any taxable year, the amount necessary to enable the
Borrower to obtain the maximum possible deduction for dividends paid, as defined
in Section 561 of the Code and further described in Section 857 of the Code for
such year, taking into account the sum of all distributions previously made to
Shareholders permitted by Section 8.08(b)(iii) hereof for such fiscal year,
provided that, any determination under Section 857 of the Code shall take into
consideration for such purpose the necessity of increasing the aggregate amounts
distributed to reflect the fact that distributions in redemption of any
preferred return on any class of stock will be treated as being made partly from
earnings and profits and partly from capital; and
(h) provided that no Default or Event of Default exists or would result
from the incurrence thereof, Debt for Borrowed Money incurred by the Borrower to
sellers in connection with Permitted Acquisitions, provided that (i) the amount
of such Debt shall not exceed, together with the amount of seller Debt described
on Schedule 8.02 hereto, $40,000,000, and (ii) in connection with the incurrence
-------------
of such Debt, a Letter of Credit shall be issued in the amount of such seller
Debt.
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 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.;
78
(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 Agent, (iii) whose stock is pledged to the
Lenders to secure the Obligations pursuant to a pledge agreement substantially
identical in form and substance to the Borrower Pledge Agreement and (iv) if the
Parent has not notified the Administrative Agent and each Lender of a REIT
Conversion, such Subsidiaries must be Qualified REIT Subsidiaries;
(f) Accounts receivable that arise in the ordinary course of business
and are payable on standard terms;
(g) Investments in existence on the Closing Date which are described on
Schedule 8.04 hereto;
-------------
(h) Investments constituting Permitted Acquisitions permitted by Section
8.06(b) hereof; and
(i) Certificates of deposit and Eurodollar time deposits with maturities
of one year or less from the date of acquisition, overnight bank deposits and
repurchase obligations having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States government
or any agency thereof, in each case, of either an Eligible Assignee or Xxxxx
Brothers Xxxxxxxx & Co., provided that such Investments do not exceed
$20,000,000 in the aggregate at any time outstanding.
8.05. Amendment and Waiver. The Borrower shall not, and shall not permit
the Parent or any Subsidiary of the Borrower to, enter into any amendment of any
term or provision, or accept any consent or waiver with respect to any such
provision, of (a) its articles of incorporation or by-laws in any manner
material and adverse to the Lenders, (b) any material provision of any material
Capital Lease in any manner material and adverse to the Lenders or (c) any
provision in any Ground Lease provision that is set forth on Exhibit K hereto.
---------
The Borrower shall not, nor shall it permit the Parent or any Subsidiary of the
Borrower to, amend or change (or take any action or fail to take any action the
result of which is an effective amendment or change) or accept any waiver or
consent with respect to, the Subordinated Debt or the Parent Senior Notes, the
Indenture or any other Parent Senior Notes Documentation, or any Second Parent
Issuance Documentation or any Bridge Debt, that would result in (a) an increase
in any principal, interest, fees, or other amounts payable under the
Subordinated Debt, the Parent Senior Notes Documentation, the Second Parent
Issuance Documentation or the Bridge Debt (including without limitation a waiver
or action that results in the waiver of any payment default under the
Subordinated Debt, the Bridge Debt, the Parent Senior Notes Documentation or the
Second Parent Issuance Documentation), (b) a change in any date fixed for any
payment of principal, interest, fees, or other amounts payable under the
Subordinated Debt, the Bridge Debt, the Parent Senior Notes Documentation or the
Second Parent Issuance Documentation (including, without
79
limitation, as a result of any redemption) to a date earlier than January 31,
2005, (c) a change in any financial covenant in the Subordinated Debt, the
Parent Senior Notes Documentation, the Bridge Debt or the Second Parent Issuance
Documentation to a more restrictive provision for the Borrower, the Parent or
any Subsidiary of the Borrower, (d) an increase in any remedy or right (or any
change that broadens the rights or remedies) of the holders of the Subordinated
Debt, the Bridge Debt, the Parent Senior Notes Documentation or the Second
Parent Issuance Documentation, (e) a change in any covenant, term or provision
in the Subordinated Debt, the Bridge Debt, the Parent Senior Notes Documentation
or the Second Parent Issuance Documentation which would result in such term or
provision being more restrictive than the terms of this Agreement and the Loan
Papers, (f) a change in any term or provision of the Parent Senior Notes
Documentation that would alter the definition of Acquisition Debt or Section
1008 of the Indenture in a manner that would make it more restrictive or effect
the usage of the Revolver B Loan or the Term Loan A, or (g) a change in any term
or provision of the Subordinated Debt, the Parent Senior Notes Documentation or
the Second Parent Issuance Documentation, or other document or instrument in
connection therewith that could have, in any material respect, an adverse effect
on the interests of the Lenders.
8.06. Liquidation, Disposition or Acquisition of Assets, Merger, New
Subsidiaries. The Borrower shall not, and shall not permit the Parent or any
Subsidiary of the Borrower to, at any time:
(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.
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In connection with any asset sale permitted by this Section 8.06, Section 11.01
hereof or otherwise consented to by the Lenders in accordance with the terms of
this Agreement, the Administrative Agent is hereby authorized by each Lender to
(i) execute any and all releases deemed appropriate by it to release such assets
of the Borrower and the Subsidiaries of the Borrower constituting Collateral
from all Liens and security interests securing all or any portion of the
Obligations, (ii) return to the Borrower any such Collateral in the possession
of the Administrative Agent, and (iii) take such other action as the
Administrative Agent deems necessary or appropriate in connection with such
transaction and in furtherance of the effectuation thereof.
8.07. Guaranties; Contingent Liabilities. The Borrower shall not, and
shall not permit the Parent or any Subsidiary of the Borrower to, at any time
make or issue any Guaranty, or assume, be obligated with respect to, or permit
to be outstanding any Contingent Liabilities, except pursuant to the Loan
Papers.
8.08. Restricted Payments. The Borrower shall not, and shall not permit
the Parent or any Subsidiary of the Borrower to, directly or indirectly declare,
make or pay any Restricted Payment; provided, however
(a) any Subsidiary of the Borrower may declare and pay a Distribution to
the Borrower, and
(b) so long as there exists no Default or Event of Default immediately
before and after giving effect to any such transaction or payment,
(i) commencing April 30, 2000, the Borrower may make an annual
Restricted Payment in an aggregate amount not to exceed in any fiscal year,
the difference between Excess Cash Flow for the preceding calendar year and
the amount required by Section 2.05(a) hereof to repay the Obligations,
provided that, no such Restricted Payment may be made in any fiscal year of
the Borrower until the Borrower has fully complied with Section 2.05(a)
hereof with respect to such year,
(ii) the Borrower and the Parent may each make payments in kind on
its Subordinated Debt (but only in kind payments and no cash payments),
(iii) so long as there has not been a REIT Conversion, the Borrower
may annually make not more than two cash distributions to the Parent, who
must use such cash distributions to make distributions to the Shareholders,
each such distribution in an aggregate amount per taxable year equal to (A)
the amount of gross income actually includible by the Shareholders on their
Tax returns with respect to such taxable year solely as a result of the
operations of the Parent, the Borrower and its Subsidiaries, multiplied by
(B) the sum of the highest marginal Federal and highest marginal State
income tax rates applicable to one or more of the Shareholders,
(iv) so long as there has not been a REIT Conversion, the Borrower
may make one or more distributions with respect to any taxable year
constituting Subordinated Debt to the Parent, who, to the extent such
distribution is made by the Borrower may make one
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or more distributions with respect to any taxable year constituting
Subordinated Debt to the Shareholders, each such distribution constituting
Subordinated Debt not to exceed in the aggregate an amount necessary to
enable the Parent to obtain the maximum possible deduction for dividends
paid, as defined in Section 561 of the Code and further described in
Section 857 of the Code for such year, taking into account the sum of all
distributions previously paid to Shareholders in accordance with the terms
of Section 8.08(b)(iii) above, provided that, in connection with any such
distribution, the Parent shall take into consideration for such purpose the
necessity of increasing the aggregate amounts distributed to reflect the
fact that distributions in redemption of any preferred return on any class
of stock will be treated as being made partly from earnings and profits and
partly from capital,
(v) the Borrower may make an annual distribution to Parent in an
amount not to exceed $25,000 to reimburse the Parent for its miscellaneous
expenses,
(vi) until September 1, 2003, the Parent may make (A) payments in
kind only on the Parent Senior Notes (but only in kind payments and no cash
payments), in accordance with the terms of the Parent Senior Notes
Documentation, and (B) payments in kind only on the Second Parent Issuance
(but only in kind payments and no cash payments), in accordance with the
terms of the Second Parent Issuance Documentation,
(vii) the Parent may repay in its entirety the Bridge Debt, but
only so long as the Parent uses the proceeds of (i) Debt issued in
accordance with the terms of Section 8.02(c)(i) hereof to repay such Bridge
Debt or (ii) equity issued in accordance with the terms of Section 8.11
hereof to repay such Bridge Debt, and
(viii) the Borrower may repay seller debt permitted to be incurred
in accordance with the terms of Section 8.02(h) hereof, so long as such
repayments are in accordance with the terms thereof.
8.09. Affiliate Transactions. The Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower to, at any time engage in
any transaction with an Affiliate, nor make an assignment or other transfer of
any of its assets or Properties to any Affiliate, on terms materially less
advantageous to the Parent, the Borrower or any Subsidiary of the Borrower than
would be the case if such transaction had been effected with a non-Affiliate,
except the agreements listed on Schedule 8.09 hereto and except for Restricted
-------------
Payments permitted to be paid under Section 8.08 hereof, and as expressly
permitted in Sections 8.02 and 8.04 hereof.
8.10. Compliance with ERISA. The Borrower shall not, and shall not permit
the Parent or any Subsidiary of the Borrower to, directly or indirectly, or
permit any member of its Controlled Group to directly or indirectly, (a)
terminate any Plan so as to result in any material (in the opinion of the
Majority Lenders) liability to the Borrower or any member of its Controlled
Group, (b) permit to exist any ERISA Event, or any other event or condition
which presents the risk of liability of the Borrower or any member of its
Controlled Group, (c) make a complete or partial withdrawal (within the meaning
of Section 4201 of ERISA) from any Multiemployer Plan so as to result in any
liability to the Borrower or any member of its
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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, provided that, (i) if there exists no
Default or Event of Default before and immediately after giving effect to such
issuance and (ii) the net proceeds of each such issuance of common Capital Stock
are contributed to the Borrower as equity (except to the extent all or any
portion of any such issuance is used to repay Debt permitted to be repaid in
accordance with the terms of Section 8.08 hereof), the Parent may issue common
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.
8.14. Limitation on Restrictive Agreements. The Borrower shall not, and
shall not permit the Parent or any Subsidiary of the Borrower to, enter into any
indenture, agreement, instrument, financing document or other arrangement which,
directly or indirectly, prohibits or restrains, or has the effect of prohibiting
or restraining, or imposes materially adverse conditions upon (a) any amendment
of, or waiver or consent to, any provision of this Agreement or any other Loan
Paper and (b) the granting of any Liens to secure the Obligations, and, except
with respect to the Parent Senior Notes, the Second Parent Issuance and the
Bridge Debt: (i) the incurrence of indebtedness, (ii) the granting of Liens,
(iii) the making or granting of Guarantees, (iv) the payment of dividends or
Distributions, (v) the purchase, redemption or retirement of any Capital Stock,
(vi) the making of loans or advances, (vii) transfers or sales of property or
assets (including Capital Stock) by the Parent, the Borrower or any of its
Subsidiaries, (viii) the making of Investments and (ix) any change of control or
management.
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ARTICLE IX. EVENTS OF DEFAULT
9.01. Events of Default. Any one or more of the following shall be an
"Event of Default" hereunder, if the same shall occur for any reason whatsoever,
whether voluntary or involuntary, by operation of Law, or otherwise:
(a) The Borrower shall fail to pay any (i) principal payable under any
Loan Paper on the date due; or (ii) any interest, fees or other amounts payable
within three days of the date due;
(b) Any representation or warranty made or deemed made by any Obligor
(or any of its officers or representatives) under or in connection with any Loan
Paper shall prove to have been incorrect or misleading in any material respect
when made or deemed made;
(c) The Borrower shall fail to perform or observe any term or covenant
contained in Article VIII hereof or in Section 7.04(e) hereof;
(d) Any Obligor shall fail to perform or observe any other term or
covenant contained in any Loan Paper, other than those described in Sections
9.01(a), (b) and (c) above or in Section 6.15(a) hereof, and such failure shall
not be remedied within thirty days following the earlier of the Borrower's
knowledge of such failure or notice from any Lender of the occurrence of such
failure;
(e) Any of the following shall occur: (i) Any Loan Paper or material
provision thereof shall, for any reason, not be valid and binding on the Obligor
signatory thereto, or not be in full force and effect, or shall be declared to
be null and void; or (ii) the validity or enforceability of any Loan Paper shall
be contested by any Obligor; or (iii) any Obligor shall deny in writing that it
has any or further liability or obligation under its respective Loan Papers; or
(iv) any default or breach under any provision of any Loan Papers shall continue
after the applicable grace period, if any, specified in such Loan Paper;
(f) Any of the following shall occur: (i) any Obligor shall make an
assignment for the benefit of creditors or be unable to pay its debts generally
as they become due; (ii) any Obligor shall petition or apply to any Tribunal for
the appointment of a trustee, receiver, or liquidator of it, or of any
substantial part of its assets, or shall commence any proceedings relating to
any Obligor under any Debtor Relief Laws; (iii) any such petition or application
shall be filed, or any such proceedings shall be commenced, against any Obligor,
or an order, judgment or decree shall be entered appointing any such trustee,
receiver, or liquidator, or approving the petition in any such proceedings, and
such petition or application shall be consented to or uncontested by such
Obligor, or if contested by such Obligor, shall not be dismissed within 60 days
following the filing of such petition or application; (iv) any final order,
judgment, or decree shall be entered in any proceedings against any Obligor
decreeing its dissolution; or (v) any final order, judgment, or decree shall be
entered in any proceedings against any Obligor decreeing its split-up which
requires the divestiture of a substantial part of its assets;
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(g) Any of the following shall occur: (i) The Borrower or any other
Obligor shall fail to pay any Subordinated Debt, Debt evidenced by the Parent
Senior Notes, Debt evidenced by any Second Parent Issuance Documentation, Bridge
Debt or any other Debt, or obligations in respect of Capital Leases (other than
Debt under the Loan Papers) in an aggregate amount of $1,000,000 or more when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such Debt;
or (ii) the Borrower or any other Obligor shall fail to perform or observe any
term or covenant contained in any agreement or instrument relating to any such
Debt, when required to be performed or observed, and such failure shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, and can result in acceleration of the maturity of such Debt; or
(iii) any such Debt shall be declared to be due and payable, or required to be
prepaid, mandatorily redeemed or repurchased (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof;
(h) Any Obligor shall have any final judgment(s) outstanding against it
for the payment of $1,000,000 or more, and such judgment(s) shall remain
unstayed, in effect, and unpaid for the period of time after which the judgment
holder may and may cause the creation of Liens against or seizure of any of its
Property;
(i) Any of the following shall have occurred: (i) Any ERISA Event shall
have occurred with respect to a Plan of the Borrower, and the sum of the
Insufficiency of such Plan and liabilities relating thereto is equal to or
greater than $1,000,000 or (ii) the Borrower or any ERISA Affiliate of the
Borrower shall have committed a failure described in Section 302(f)(l) of ERISA,
and the amount determined under Section 302(f)(3) of ERISA is equal to or
greater than $1,000,000;
(j) The Borrower or any ERISA Affiliate of the Borrower shall have been
notified by the sponsor of a Multiemployer Plan that (A) it has incurred
Withdrawal Liability to such Plan in an amount that, exceeds $1,000,000 or
requires payments exceeding $1,000,000 per annum, or (B) such Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result thereof the aggregate annual contributions to all Multiemployer
Plans in reorganization or being terminated is increased over the amounts
contributed to such Plans for the preceding Plan year by an amount exceeding
$1,000,000;
(k) Any Obligor shall be required under any Environmental Law (i) to
implement any remedial, neutralization, or stabilization process or program, the
cost of which would constitute a Material Adverse Change, or (ii) to pay any
penalty, fine, or damages in an aggregate amount which would constitute a
Material Adverse Change;
(l) Any of the following shall have occurred: (i) Any Property (whether
leased or owned), or the operations conducted thereon by any Obligor or any
current or prior owner or operator thereof (in the case of real Property), shall
violate or have violated any applicable Environmental Law, if such violation
would constitute a Material Adverse Change; or (ii) such Obligor shall not
obtain or maintain any License required to be obtained or filed under any
Environmental Law in connection with the use of such Property and assets,
including without
85
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;
(o) Any of the following shall have occurred if the effect thereof is to
cause a Material Adverse Change: (i) Any License whether presently existing or
hereafter granted to or obtained by Borrower or any Subsidiary of the Borrower
shall expire without renewal on or before payment in full of the Notes and all
Obligations hereunder, or be suspended or revoked, or (ii) Borrower or any
Subsidiary of the Borrower shall become subject to any injunction or other order
affecting or which may affect Borrower's or a Subsidiary of the Borrower's
present or proposed operations under any such License;
(p) The occurrence of one of more of the following events: (i) the
occurrence of a Change of Control, or (ii) the Parent shall own less than 100%
of the Capital Stock of the Borrower, or the Borrower shall own less than 100%
of its Subsidiaries; or (iii) any one of the President, Chief Executive Officer,
Chief Financial Officer or Chief Operating Officer of the Borrower shall, for
any reason, fail to perform the primary roles and functions of such position on
behalf of the Borrower (whether pursuant to death, extended disability,
termination, resignation or otherwise) AND the Borrower shall not have replaced
such senior executive with a new employee reasonably acceptable to the Majority
Lenders within 60 days after such failure;
(q) For any taxable year, the Borrower shall have made any Restricted
Payment to the Parent, or the Parent shall have made any Restricted Payment to
any Shareholder in accordance with the terms of Section 8.08(b)(iii) hereof for
the tax liability of any Shareholder for such taxable year, and the Borrower or
the Parent shall also have paid or be subject to any Federal income tax on any
amount in excess of five percent of the Borrower's real estate investment trust
taxable income for such taxable year;
(r) Any civil action, suit or proceeding shall be commenced against
Borrower, the Parent, or any Subsidiary of the Borrower under any federal or
state racketeering statute (including, without limitation, the Racketeer
Influenced and Corrupt Organization Act of 1970) ("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
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Parent, or any Subsidiary of the Borrower under any federal or state
racketeering statute (including, without limitation, RICO);
(s) With respect to Parent, Borrower or any Subsidiary of the Borrower,
if the Parent and the Borrower have not notified the Administrative Agent in
accordance with the terms of Section 7.04(e) hereof of a REIT Conversion, (i)
any such entity fails to pay dividends in the amount of taxable income necessary
to maintain Parent's REIT Status, or (ii) Parent shall fail to maintain its REIT
Status or (iii) Borrower or any Subsidiary of Borrower shall fail to maintain
its status as a Qualified REIT Subsidiary;
(t) A "Change of Control" as that term is defined in the Parent Senior
Notes Documentation or any Second Parent Issuance Documentation shall occur;
(u) The Borrower shall not have received an equity contribution within
five days after the payment by the Borrower of cash dividends in accordance with
the terms of Sections 8.08(b)(iii) and (iv) hereof ("Tax Dividends"), in an
amount not less than the difference between (i) the aggregate amount of such Tax
Dividends and (ii) the Shareholder's maximum tax liability as a result of the
operations of the Borrower (after giving effect to all tax benefits), or
(v) The Motorola Acquisition has not been consummated in accordance with
the terms of the Acquisition Agreement by October 31, 1999, AND the Borrower and
the Parent shall not have reached an agreement with the Administrative Agent and
BAS by November 30, 1999 regarding a restructuring of the amortization of the
Loans in Sections 2.06(d) and 2.11(b) hereof to the reasonable satisfaction of
the Administrative Agent and BAS.
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 Agent or any Lender, and without
diligence, presentment, demand, protest, notice of protest or intent to
accelerate, or notice of any other kind, all of which are hereby expressly
waived. Subject to the foregoing sentence, if any Event of Default shall occur
and be continuing, Administrative Agent may at its election, 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 either the Revolver A Commitment or the Revolver B
Commitment or both of the Commitments;
(c) Reduce any claim of Administrative Agent and Lenders to judgment;
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(d) Demand (and the Borrower shall pay to Administrative Agent)
immediately upon demand and in immediately available funds, the amount equal to
the aggregate amount of the Letters of Credit then outstanding, irrespective of
whether such Letters of Credit have been drawn upon, all as set forth and in
accordance with the terms of provisions of Article III hereof. The
Administrative Agent shall promptly advise the Borrower of any such declaration
or demand but failure to do so shall not impair the effect of such declaration
or demand; and
(e) Exercise any Rights afforded under any Loan Papers, by Law,
including but not limited to the UCC, at equity, or otherwise.
9.03. Cumulative Rights. All Rights available to Administrative Agent
and Lenders under the Loan Papers shall be cumulative of and in addition to all
other Rights granted thereto at Law or in equity, whether or not amounts owing
thereunder shall be due and payable, and whether or not Administrative Agent or
any Lender shall have instituted any suit for collection or other action in
connection with the Loan Papers.
9.04. Waivers. The acceptance by Administrative Agent or any Lender at
any time and from time to time of partial payment of any amount owing under any
Loan Papers shall not be deemed to be a waiver of any Default or Event of
Default then existing. No waiver by Administrative Agent or any Lender of any
Default or Event of Default shall be deemed to be a waiver of any Default or
Event of Default other than such Default or Event of Default. No delay or
omission by Administrative Agent or any Lender in exercising any Right under the
Loan Papers shall impair such Right or be construed as a waiver thereof or an
acquiescence therein, nor shall any single or partial exercise of any such Right
preclude other or further exercise thereof, or the exercise of any other Right
under the Loan Papers or otherwise.
9.05. Performance by Administrative Agent or any Lender. Should any
covenant of any Obligor fail to be performed in accordance with the terms of the
Loan Papers, Administrative Agent may, at its option, perform or attempt to
perform such covenant on behalf of such Obligor. Notwithstanding the foregoing,
it is expressly understood that neither Administrative Agent nor any Lender
assumes, and shall not ever have, except by express written consent of
Administrative Agent or such Lender, any liability or responsibility for the
performance of any duties or covenants of any Obligor.
9.06. Expenditures. The Borrower shall reimburse Administrative Agent
and each Lender for any reasonable sums spent by it in connection with the
exercise of any Right under Section 9.05 hereof. Such sums shall bear interest
at the lesser of (a) the Base Rate (whether or not in effect), plus 2.00% per
annum and (b) the Highest Lawful Rate, from five days after the date any Lender
makes demand to the Borrower for reimbursement of such amount until the date of
repayment by the Borrower.
9.07. Control. None of the covenants or other provisions contained in
this Agreement shall, or shall be deemed to, give Administrative Agent or any
Lender any Rights to exercise control over the affairs and/or management of any
Obligor, the power of Administrative Agent and each Lender being limited to the
Rights to exercise the remedies provided in this Article; provided, however,
-------- -------
that if Administrative Agent or any Lender becomes the owner of any
88
partnership, stock or other equity interest in any Person, whether through
foreclosure or otherwise, it shall be entitled to exercise such legal Rights as
it may have by being an owner of such stock or other equity interest in such
Person.
ARTICLE X. THE ADMINISTRATIVE AGENT
10.01. Authorization and Action. Each Lender hereby appoints and
authorizes Administrative Agent to take such action as Administrative Agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Papers as are delegated to the Administrative Agent by the terms of the Loan
Papers, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement and the other Loan
Papers (including without limitation enforcement or collection of the Notes),
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
Majority Lenders (or all Lenders, if required under Section 11.01 hereof), and
such instructions shall be binding upon all Lenders; provided, however, that
-------- -------
Administrative Agent shall not be required to take any action which exposes
Administrative Agent to personal liability or which is contrary to any Loan
Papers or applicable Law. Administrative Agent agrees to give to each Lender
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement, and to distribute to each applicable Lender in like funds all amounts
delivered to Administrative Agent by the Borrower for the Ratable or individual
account of any Lender. Functions of the Administrative Agent are administerial
in nature and in no event shall the Administrative Agent have a fiduciary or
trustee relationship in respect of any Lender by reason of this Agreement or any
Loan Paper.
10.02. Administrative Agent's Reliance, Etc. Neither Administrative
Agent, nor any of its directors, officers, agents, employees, or representatives
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or any other Loan Paper, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, Administrative Agent (a) may treat the payee of any
Note as the holder thereof until Administrative Agent receives written notice of
the assignment or transfer thereof signed by such payee and in form satisfactory
to Administrative Agent; (b) may consult with legal counsel (including counsel
for the Borrower or any of its Subsidiaries), independent public accountants,
and other experts selected by it, and shall not be liable for any action taken
or omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants, or experts; (c) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements,
warranties, or representations made in or in connection with this Agreement or
any other Loan Papers; (d) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants, or conditions
of this Agreement or any other Loan Papers on the part of any Obligor or its
Subsidiaries or to inspect the Property (including the books and records) of any
Obligor or its Subsidiaries; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency, or
value of this Agreement, any other Loan Papers, or any other instrument or
document furnished pursuant hereto; and (f) shall incur no liability under or in
respect of this Agreement or any other Loan Papers by acting upon any notice,
consent,
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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 portion of
the Commitments, 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 Agent. 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 Agent and without any duty to account
therefor to any Lender.
10.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Administrative Agent or any other
Lender, and based on the financial statements referred to in Section 5.01(j),
Article VII hereof and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon Administrative Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Papers.
10.05. Indemnification by Lenders. Lenders shall indemnify
Administrative Agent, Pro Rata, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against Administrative Agent in any way relating to
or arising out of any Loan Papers or any action taken or omitted by
Administrative Agent thereunder, including any negligence of Administrative
Agent; provided, however, that no Lender shall be liable for any portion of such
-------- -------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements resulting from Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, Lenders
shall reimburse Administrative Agent, Pro Rata, promptly upon demand for any
out-of-pocket expenses (including reasonable attorneys' fees) incurred by
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment, or enforcement (whether through
negotiation, legal proceedings or otherwise) of, or legal and other advice in
respect of rights or responsibilities under, the Loan Papers. The indemnity
provided in this Section 10.05 shall survive the termination of this Agreement.
10.06. Successor Administrative Agent. Administrative Agent may resign
at any time by giving written notice thereof to Lenders and the Borrower, and
may be removed at any time with or without cause by the action of all Lenders
(other than Administrative Agent, if it is a Lender). Upon any such
resignation, Majority Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the Laws
of the United States of America or of any State thereof and having a combined
capital
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and surplus of at least $50,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the Rights and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
the Loan Papers, provided that if the retiring or removed Administrative Agent
is unable to appoint a successor Administrative Agent, Administrative Agent
shall, after the expiration of a sixty day period from the date of notice, be
relieved of all obligations as Administrative Agent hereunder. Notwithstanding
any Administrative Agent's resignation or removal hereunder, the provisions of
this Article shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE XI. MISCELLANEOUS
11.01. Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Papers, nor consent to any departure by the
Borrower or any Obligor therefrom, shall be effective unless the same shall be
in writing and signed by the Borrower and the Administrative Agent with the
consent of the Majority Lenders, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver, or consent shall (and the
-------- -------
result of action or failure to take action shall not) unless in writing and
signed by all of Lenders and Administrative Agent, (a) increase either of the
Commitments (except as specifically permitted by Section 2.18 hereof), (b)
reduce any principal, interest, fees, or other amounts payable hereunder, or
waive or result in the waiver of any Event of Default under Section 9.01(a)
hereof, (c) postpone any date fixed for any payment of principal, interest,
fees, or other amounts payable hereunder, (d) release any Collateral or
guaranties securing any Obligor's obligations hereunder, other than (i) releases
contemplated by the provisions of this Agreement or by the other Loan Papers and
(ii) releases of assets that (A) are being sold by the Borrower in its ordinary
course of business and (B) are obsolete or immaterial to the business of the
Borrower, (C) are immaterial and were acquired by the Borrower in connection
with a Permitted Acquisition but never contemplated to be used in the operations
of the Borrower, (which such releases do not require the consent of any Lender
except the Administrative Agent), (e) change the meaning of "Revolver A
Specified Percentage", "Revolver B Specified Percentage"(except in accordance
with the terms of Section 2.18 hereof), "Term Loan A Specified Percentage",
"Term Loan B Specified Percentage" or "Total Specified Percentage" (except in
accordance with the terms of Section 2.18 hereof), or the number of Lenders
required to take any action hereunder, (f) change the definitions of "Revolver A
Commitment", "Revolver B Commitment", "Commitments", "Unavailable Commitment",
"First Maturity Date", "Final Maturity Date", "Majority Lenders", or "Letter of
Credit Commitment", (g) or amend any provision of Section 2.18 hereof which
would affect any of the items listed in Section 11.01(a) through (f) above, or
(h) amend this Section 11.01. No amendment, waiver, or consent shall affect the
Rights or duties of Administrative Agent under any Loan Papers, unless it is in
writing and signed by Administrative Agent in addition to the requisite number
of Lenders.
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11.02. Notices.
(a) Manner of Delivery. All notices communications and other materials
to be given or delivered under the Loan Papers shall, except in those cases
where giving notice by telephone is expressly permitted, be given or delivered
in writing. All written notices, communications and materials shall be sent by
registered or certified mail, postage prepaid, return receipt requested, by
telecopier, or delivered by hand. In the event of a discrepancy between any
telephonic notice and any written confirmation thereof, such written
confirmation shall be deemed the effective notice except to the extent
Administrative Agent, any Lender or the Borrower has acted in reliance on such
telephonic notice.
(b) Addresses. All notices, communications and materials to be given or
delivered pursuant to this Agreement shall be given or delivered at the
following respective addresses and telecopier and telephone numbers and to the
attention of the following individuals or departments:
(i) If to the Borrower:
Pinnacle Towers Inc.
0000 Xxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxx Xxx
(ii) If to Administrative Agent:
NationsBank, N.A.
Bank of America Plaza
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
Principal
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With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C.
3400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx Xxxxxxx
(iii) If to any Lender, to its address shown on Schedule 11.02 hereto or
--------------
on any Assignment and Acceptance.
or at such other address or, telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice to the other
specifically captioned "Notice of Change of Address".
(d) Effectiveness. Each notice, communication and any material to be
given or delivered to any party pursuant to this Agreement shall be effective or
deemed delivered or furnished (i) if sent by mail, on the fifth day after such
notice, communication or material is deposited in the mail, addressed as above
provided, (ii) if sent by telecopier, when such notice, communication or
material is transmitted to the appropriate number determined as above provided
in this Section 11.02 and the appropriate receipt is received or otherwise
acknowledged, (iii) if sent by hand delivery or overnight courier, when left at
the address of the addressee addressed as above provided, and (iv) if given by
telephone, when communicated to the individual or any member of the department
specified as the individual or department to whose attention notices,
communications and materials are to be given or delivered except that notices of
a change of address, telecopier or telephone number or individual or department
to whose attention notices, communications and materials are to be given or
delivered shall not be effective until received; provided, however, that notices
-------- -------
to Administrative Agent pursuant to Article II shall be effective when received.
The Borrower agrees that Administrative Agent shall have no duty or obligation
to verify or otherwise confirm telephonic notices given pursuant to Article II,
and agrees to indemnify and hold harmless Administrative Agent and Lenders for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, and expenses resulting, directly or indirectly,
from acting upon any such notice.
11.03. Parties in Interest. All covenants and agreements contained in
this Agreement and all other Loan Papers shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto. Each Lender may
from time to time assign or transfer its interests hereunder pursuant to Section
11.04 hereof. The Borrower may not assign or transfer its Rights or obligations
hereunder without the prior written consent of Administrative Agent.
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11.04. Assignments and Participations.
(a) Each Lender (an "Assignor") may assign its Rights and obligations as a
Lender under the Loan Papers to one or more Eligible Assignees pursuant to an
Assignment and Acceptance, so long as (i) each assignment shall be of a
constant, and not a varying percentage of all Rights and obligations thereunder,
(ii) each Assignor shall obtain in each case the prior written consent of
Administrative Agent and the Borrower, in each case such consent not to be
unreasonably withheld or delayed, provided that, in the event there exists a
Default or Event of Default, any such consent of the Borrower shall not be
required, (iii) each Assignor shall in each case pay a $3,500 processing fee to
Administrative Agent and (iv) no such assignment is for an amount less than
$3,000,000 (and, if such assignment is a partial assignment, no Lender shall
hold less than $3,000,000 immediately after giving effect to any assignment).
Assignments and other transfers (except participations) with respect to each
Lender's participation in a given Letter of Credit may only be made with the
prior written consent of the Administrative Agent. Within five Business Days
after Administrative Agent receives notice of any such assignment, the Borrower
shall execute and deliver to Administrative Agent, in exchange for the Notes
issued to Assignor, new Notes to the order of such Assignor and its assignee in
amounts equal to their respective Revolver A Specified Percentages of the
Revolver A Commitment, the Revolver B Specified Percentages of the Revolver B
Commitment, their respective Term Loan A Specified Percentages of $125,000,000
and their respective Term Loan B Specified Percentages of $175,000,000. Such
new Notes shall be dated the effective date of the assignment. It is
specifically acknowledged and agreed that on and after the effective date of
each assignment, the assignee shall be a party hereto and shall have the Rights
and obligations of a Lender under the Loan Papers.
(b) Each Lender may sell participations to one or more Persons in all or any
of its Rights and obligations under the Loan Papers; provided, however, that (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, (v) Obligor, Administrative Agent,
and other Lenders shall continue to deal solely and directly with such Lender in
connection with its Rights and obligations under the Loan Papers 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
94
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 under this Agreement and the other
Loan Papers, whether or not Administrative Agent or any Lender shall have made
any demand under this Agreement or the other Loan Papers, and even if such
obligations are unmatured. Each Lender shall promptly notify the Borrower after
any such set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The Rights of
each Lender under this Section 11.06 are in addition to other Rights (including,
without limitation, other Rights of set-off) which such Lender may have.
11.07. Costs, Expenses, and Taxes.
(a) The Borrower agrees to pay on demand (i) all costs and expenses of
Administrative Agent and BAS in connection with the preparation and negotiation
of all Loan Papers, including without limitation the reasonable fees and out-of-
pocket expenses of Special Counsel, (ii) all costs and expenses of
Administrative Agent and BAS in connection with any syndication of the Loans,
including without limitation the costs of all amendments to this Agreement and
the Loan Papers and the reasonable fees and out-of-pocket expenses of Special
Counsel, (iii) all costs and expenses (including reasonable attorneys' fees and
expenses) of Administrative Agent in connection with any interpretation, grant
and perfection of any Lien, modification, amendment, waiver, release of any Loan
Papers, restructuring or work-out and (iv) all costs and expenses (including
reasonable attorneys' fees and expenses) of Administrative Agent and each Lender
in connection with any collection of any portion of the Obligations or the
enforcement of any Loan Papers during the continuance of an Event of Default.
95
(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 Agent or
any Lender or franchise Taxes or Taxes on capital or capital receipts of
Administrative Agent or any Lender), or the execution, delivery, or recordation
of any Loan Papers, and agrees to save Administrative Agent and each Lender
harmless from and against any and all liabilities with respect to, or resulting
from any delay in paying or omission to pay any Taxes in accordance with this
Section 11.07, including any penalty, interest, and expenses relating thereto.
All payments by the Borrower or any Subsidiary of the Borrower under any Loan
Papers shall be made free and clear of and without deduction for any present or
future Taxes (other than Taxes on the overall net income of Administrative Agent
or any Lender of any nature now or hereafter existing, levied, or withheld, or
franchise Taxes or Taxes on capital or capital receipts of Administrative Agent
or any Lender), including all interest, penalties, or similar liabilities
relating thereto. If the Borrower shall be required by Law to deduct or to
withhold any Taxes from or in respect of any amount payable hereunder (i) the
amount so payable shall be increased to the extent necessary so that, after
making all required deductions and withholdings (including Taxes on amounts
payable to Administrative Agent or any Lender pursuant to this sentence),
Administrative Agent or any Lender receives an amount equal to the sum it would
have received had no such deductions or withholdings been made, (ii) the
Borrower shall make such deductions or withholdings, and (iii) the Borrower
shall pay the full amount deducted or withheld to the relevant taxing authority
in accordance with applicable Law. 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 Commitments, 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
Agent or any Lender ever receives, collects or applies, as interest, any such
excess, such amount which would be excessive interest shall be deemed a partial
repayment of principal and treated hereunder as such; and if principal is paid
in full, any remaining excess shall be paid to the Borrower or the other Person
entitled thereto. In determining whether or not the interest paid or payable,
under any specific contingency, exceeds the Maximum Amount, each Obligor,
Administrative Agent and each Lender shall, to the maximum extent permitted
under Applicable Laws, (a) characterize any nonprincipal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments and
the effect thereof, and (c) amortize, prorate, allocate and spread in equal
parts, the total amount of interest throughout the entire contemplated term of
the Obligations so that the interest rate is uniform throughout the entire term
of the Obligations; provided that if the Obligations are paid and performed in
--------
full prior to the end of the full contemplated term thereof, and if the interest
received for the actual period of existence thereof exceeds the Maximum Amount,
Administrative Agent or Lenders, as appropriate, shall refund to the Borrower
the amount of such excess or credit the amount of such excess against the total
principal amount owing, and, in such event, neither Administrative Agent nor any
Lender shall be subject to any penalties
96
provided by any Laws for contracting for, charging or receiving interest in
excess of the Maximum Amount. This Section 11.08 shall control every other
provision of all agreements among the parties to the Loan Papers pertaining to
the transactions contemplated by or contained in the Loan Papers.
11.09. Severability. If any provision of any Loan Papers is held to be
illegal, invalid, or unenforceable under present or future Laws during the term
thereof, such provision shall be fully severable, the appropriate Loan Paper
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part thereof, and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance therefrom.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision there
shall be added automatically as a part of such Loan Paper a legal, valid, and
enforceable provision as similar in terms to the illegal, invalid, or
unenforceable provision as may be possible.
11.10. Exceptions to Covenants. No Obligor shall be deemed to be permitted
to take any action or to fail to take any action that is permitted as an
exception to any covenant in any Loan Papers, or that is within the permissible
limits of any covenant, if such action or omission would result in a violation
of any other covenant in any Loan Papers.
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
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FOR NOTICE UNDER THIS AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL. NOTHING IN THIS
SECTION 11.12 SHALL AFFECT THE RIGHT OF ADMINISTRATIVE AGENT OR ANY LENDER TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
11.13. ENTIRE AGREEMENT . THIS AGREEMENT AND THE OTHER LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
11.14. Amendment, Restatement, Extension, Renewal and Increase. This
Agreement is a renewal and amendment and restatement of the Original Credit
Agreement, and, as such, except for the "Obligation" as defined in the Original
Credit Agreement (which shall survive, be renewed and restated by the terms of
this Agreement), all other terms and provisions supersede in their entirety the
Original Credit Agreement. All subordination agreements, security agreements,
pledge agreements, mortgages, deeds of trust and other documents and instruments
granting any security interest or assigning any interest in any assets of the
Borrower or any Subsidiary to secure the Obligation executed and delivered in
connection with this Agreement that restate any previously granted interest
shall supersede any subordination agreements, security agreements, pledge
agreements, mortgages, deeds of trust and other documents and instruments
granting any security interest or assigning any interest in any assets of the
Borrower or any Subsidiary that were executed and delivered in connection with
the Original Credit Agreement (the "Original Security Documents"), except for
the Liens created under the Original Security Documents which shall remain
valid, binding and enforceable Liens against the Borrower, the Subsidiaries and
each of the other Persons granting any such Liens. All other Original Security
Documents shall continue to secure the Obligations as herein defined, and shall
be in full force and effect.
===============================================================================
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
===============================================================================
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IN WITNESS WHEREOF, this Fourth Amended and Restated Credit Agreement is
executed as of the date first set forth above.
THE BORROWER:
PINNACLE TOWERS INC.
___________________________________________
By:________________________________________
Its:_______________________________________
Administrative Agent:
NATIONSBANK, N.A., as Administrative Agent
___________________________________________
By: Xxxxxxx X. Xxxxx
Its: Principal
LENDERS:
Term Loan A
Specified Percentage: 100.00% NATIONSBANK, N.A., individually as a Lender
Term Loan B
Specified Percentage: 100.00%
___________________________________________
By: Xxxxxxx X. Xxxxx
Revolver A Its: Principal
Specified Percentage: 100.00%
Revolver B
Specified Percentage: 100.00%
Total
Specified Percentage: 100.00%
Address:
Bank of America Plaza
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attn.: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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