EXHIBIT 10.1
LOAN AGREEMENT
AMONG
AMERICAN TOWER SYSTEMS, INC. (THE "BORROWER");
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR AS BANKS ON
THE SIGNATURE PAGES HEREOF (COLLECTIVELY, THE "BANKS");
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
FOR THE BANKS (THE "ADMINISTRATIVE AGENT")
Dated as of November 22, 1996
Powell, Goldstein, Xxxxxx & Xxxxxx
Atlanta, Georgia
LOAN AGREEMENT
AMONG
AMERICAN TOWER SYSTEMS, INC. (THE "BORROWER");
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR AS BANKS ON
THE SIGNATURE PAGES HEREOF (COLLECTIVELY, THE "BANKS");
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
FOR THE BANKS (THE "ADMINISTRATIVE AGENT")
INDEX
Page
ARTICLE 1 Definitions............................................... 1
ARTICLE 2 Loans..................................................... 20
Section 2.1 The Loans............................... 20
Section 2.2 Manner of Borrowing and Disbursement.... 20
Section 2.3 Interest................................ 24
Section 2.4 Commitment Fees......................... 25
Section 2.5 Mandatory Commitment Reductions......... 26
Section 2.6 Voluntary Commitment Reductions......... 28
Section 2.7 Prepayments and Repayments.............. 29
Section 2.8 Notes; Loan Accounts.................... 30
Section 2.9 Manner of Payment....................... 30
Section 2.10 Reimbursement........................... 31
Section 2.11 Pro Rata Treatment...................... 32
Section 2.12 Capital Adequacy........................ 32
Section 2.13 Bank Tax Forms.......................... 33
ARTICLE 3 Conditions Precedent...................................... 34
Section 3.1 Conditions Precedent to Initial Advance. 34
Section 3.2 Conditions Precedent to Each Advance.... 35
ARTICLE 4 Representations and Warranties............................ 36
Section 4.1 Representations and Warranties.......... 36
Section 4.2 Survival of Representations and
Warranties, etc......................... 44
ARTICLE 5 General Covenants......................................... 44
Section 5.1 Preservation of Existence and Similar
Matters................................. 44
Section 5.2 Business; Compliance with Applicable
Law..................................... 45
Page
Section 5.3 Maintenance of Properties............... 45
Section 5.4 Accounting Methods and Financial
Records................................. 45
Section 5.5 Insurance............................... 45
Section 5.6 Payment of Taxes and Claims............. 46
Section 5.7 Compliance with ERISA................... 46
Section 5.8 Visits and Inspections.................. 48
Section 5.9 Payment of Indebtedness; Loans.......... 49
Section 5.10 Use of Proceeds......................... 49
Section 5.11 Real Estate............................. 49
Section 5.12 Indemnity............................... 50
Section 5.13 Interest Rate Hedging................... 51
Section 5.14 Covenants Regarding Formation of
Restricted Subsidiaries and
Acquisitions; Partnership, Subsidiaries. 51
Section 5.15 Payment of Wages........................ 52
Section 5.16 Further Assurances...................... 52
ARTICLE 6 Information Covenants..................................... 53
Section 6.1 Quarterly Financial Statements and
Information............................. 53
Section 6.2 Annual Financial Statements and
Information............................. 53
Section 6.3 Performance Certificates................ 54
Section 6.4 Copies of Other Reports................. 54
Section 6.5 Notice of Litigation and Other Matters.. 55
ARTICLE 7 Negative Covenants........................................ 56
Section 7.1 Indebtedness of the Borrower and its
Subsidiaries............................ 57
Section 7.2 Limitation on Liens..................... 57
Section 7.3 Amendment and Waiver.................... 57
Section 7.4 Liquidation, Merger or Disposition of
Assets.................................. 58
Section 7.5 Limitation on Guaranties................ 58
Section 7.6 Investments and Acquisitions............ 59
Section 7.7 Restricted Payments..................... 60
Section 7.8 Leverage Ratio.......................... 60
Section 7.9 Interest Coverage Ratio................. 61
Section 7.10 Annualized Operating Cash Flow to Pro
Forma Debt Service...................... 61
Section 7.11 Limitation on Capital Expenditures...... 61
Section 7.12 Affiliate Transactions.................. 62
Section 7.13 Real Estate............................. 62
Section 7.14 ERISA Liabilities....................... 62
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Page
ARTICLE 8 Default................................................... 63
Section 8.1 Events of Default....................... 63
Section 8.2 Remedies................................ 66
Section 8.3 Payments Subsequent to Declaration of
Event of Default........................ 68
ARTICLE 9 The Administrative Agent.................................. 69
Section 9.1 Appointment and Authorization........... 69
Section 9.2 Interest Holders........................ 69
Section 9.3 Consultation with Counsel............... 69
Section 9.4 Documents............................... 69
Section 9.5 Administrative Agent and Affiliates..... 70
Section 9.6 Responsibility of the Administrative
Agent................................... 70
Section 9.7 Action by the Administrative Agent...... 70
Section 9.8 Notice of Default or Event of Default... 71
Section 9.9 Responsibility Disclaimed............... 72
Section 9.10 Indemnification......................... 72
Section 9.11 Credit Decision......................... 73
Section 9.12 Successor Administrative Agent.......... 73
Section 9.13 Delegation of Duties.................... 74
ARTICLE 10 Change in Circumstances Affecting LIBOR
Advances......................................... 74
Section 10.1 LIBOR Basis Determination Inadequate or
Unfair.................................. 74
Section 10.2 Illegality.............................. 74
Section 10.3 Increased Costs......................... 75
Section 10.4 Effect On Other Advances................ 76
ARTICLE 11 Miscellaneous.................................... 77
Section 11.1 Notices................................. 77
Section 11.2 Expenses................................ 78
Section 11.3 Waivers................................. 79
Section 11.4 Set-Off................................. 79
Section 11.5 Assignment.............................. 80
Section 11.6 Accounting Principles................... 82
Section 11.7 Counterparts............................ 83
Section 11.8 Governing Law........................... 83
Section 11.9 Severability............................ 84
Section 11.10 Interest................................ 84
Section 11.11 Table of Contents and Headings.......... 84
Section 11.12 Amendment and Waiver.................... 84
Section 11.13 Entire Agreement........................ 85
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Page
Section 11.14 Other Relationships..................... 85
Section 11.15 Directly or Indirectly.................. 85
Section 11.16 Reliance on and Survival of Various
Provisions.............................. 86
Section 11.17 Senior Debt............................. 86
Section 11.18 Obligations Several..................... 86
Section 11.19 Confidentiality......................... 86
Section 11.20 Termination of Agreement................ 87
ARTICLE 12 Waiver of Jury Trial............................. 87
Section 12.1 Waiver of Jury Trial.................... 87
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EXHIBITS
Exhibit A - Form of Borrower's Pledge Agreement
Exhibit B - Form of Borrower's Security Agreement
Exhibit C - Form of Certificate of Financial Condition
Exhibit D - Form of Promissory Note
Exhibit E - Form of Parent Pledge Agreement
Exhibit F - Form of Request for Advance
Exhibit G - Form of Subsidiary Guaranty
Exhibit H - Form of Subsidiary Pledge Agreement
Exhibit I - Form of Subsidiary Security Agreement
Exhibit J - Form of Use of Proceeds Letter
Exhibit K - Form of Borrower's Loan Certificate
Exhibit L - Form of Subsidiary Loan Certificate
Exhibit M - Form of Performance Certificate
Exhibit N - Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 Licenses
Schedule 2 Description of Philadelphia Disposition
Schedule 3 List of Unrestricted Subsidiaries on the
Agreement Date
Schedule 4.1(a) Exceptions to Representations and Warranties
Schedule 4.1(c) Subsidiaries
Schedule 4.1(i) Litigation
Schedule 4.1(s) Affiliate Transactions
Schedule 4.1(v) Indebtedness
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LOAN AGREEMENT
AMONG
AMERICAN TOWER SYSTEMS, INC. (THE "BORROWER");
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR AS BANKS ON
THE SIGNATURE PAGES HEREOF (COLLECTIVELY, THE "BANKS");
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
FOR THE BANKS (THE "ADMINISTRATIVE AGENT")
W I T N E S S E T H:
WHEREAS, Borrower has requested that the Banks make available to
Borrower a revolving credit facility permitting advances of up to Ninety Million
Dollars ($90,000,000) at any one time outstanding; and
WHEREAS, the Banks are willing to extend such financing to Borrower
subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt, adequacy and sufficiency of
which are acknowledged by the parties hereto, it is hereby agreed as follows:
ARTICLE 1
Definitions
For the purposes of this Agreement:
"Acquisition" shall mean (whether by purchase, lease, exchange,
issuance of stock or other equity or debt securities, merger, reorganization or
any other method) (i) any acquisition by the Borrower or any Restricted
Subsidiary of any other Person, which Person shall then become consolidated with
the Borrower or any such Restricted Subsidiary in accordance with GAAP; (ii) any
acquisition by the Borrower or any Restricted Subsidiary of all or any
substantial part of the assets of any other Person; or (iii) any acquisition by
Borrower or any Restricted Subsidiary of any communications tower facilities,
communications tower management businesses or related contracts, other than any
such Acquisition which shall be made by, or of, any Person which shall have been
designated and approved as an Unrestricted Subsidiary.
"Acquisition Operating Cash Flow" shall mean in the case of an
Acquisition permitted hereunder, Operating Cash Flow of the Borrower and its
Restricted Subsidiaries for the period during which such Acquisition occurs,
adjusted (A) to give effect to such Acquisition, as if such Acquisition had
occurred on the
first day of such period, by excluding the Operating Cash Flow of such
Acquisition during such period prior to the date of such Acquisition and adding
to the Operating Cash Flow of the Borrower, if positive, or subtracting from
such Operating Cash Flow, if negative, the product of (i) the actual Operating
Cash Flow of such Acquisition for that portion of such period from the date of
such Acquisition to the last day of such period, multiplied by (ii) a fraction
the numerator of which is the number of calendar days in such period and the
denominator of which is the number of days in such period from and including the
date of such Acquisition through the last day of such period.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., in
its capacity as Administrative Agent for the Banks or any successor
Administrative Agent appointed pursuant to Section 9.12 hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx Xxxxx
00000, or such other office as may be designated pursuant to the provisions of
Section 11.1 hereof.
"Advance" shall mean amounts advanced by the Banks to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For purposes of this definition, "control" when used with
respect to any Person includes, without limitation, the direct or indirect
beneficial ownership of more than ten percent (10%) of the voting securities or
voting equity of such Person or the power to direct or cause the direction of
the management and policies of such Person whether by contract or otherwise. For
purposes of this Agreement, American Radio Systems and its Affiliates shall be
deemed to be Affiliates of the Borrower.
"Agreement" shall mean this Loan Agreement, as amended, supplemented,
restated or otherwise modified from time to time.
"Agreement Date" shall mean November 22, 1996.
"American Radio Systems" shall mean American Radio Systems
Corporation, a Delaware corporation.
"Annualized Operating Cash Flow" (a) for any calculation date up to
and including December 31, 1997, the product of (i) Operating Cash Flow for the
calendar month-end being tested or the most recently completed calendar month
immediately preceding
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the calculation date, as the case may be, times (ii) twelve (12); and (b) for
any calculation date after December 31, 1997, the product of (i) Operating Cash
Flow for the fiscal quarter-end being tested or the most recently completed
fiscal quarter immediately preceding the calculation date, as the case may be,
times (ii) four (4).
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limiting
the foregoing, the Licenses, the Communications Act, zoning ordinances and all
Environmental Laws, and all orders, decisions, judgments and decrees of all
courts and arbitrators in proceedings or actions to which the Person in question
is a party or by which it is bound.
"Applicable Margin" shall mean the interest rate margin applicable to
Base Rate Advances and LIBOR Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof.
"Applicable Margin Ratio" shall mean, as of any date, the ratio of (a)
the Total Debt of the Borrower and its Restricted Subsidiaries on a consolidated
basis on such date to (b) the product of (i) Operating Cash Flow of the Borrower
and its Restricted Subsidiaries, for the most recently completed fiscal quarter
times (ii) four (4).
"Authorized Signatory" shall mean such senior personnel of a Person as
may be duly authorized and designated in writing by such Person to execute
documents, agreements and instruments on behalf of such Person.
"Available Commitment" shall mean (a) prior to receipt by the Borrower
after the Agreement Date of not less than $3,000,000.00 of contributed equity,
and after giving effect to reductions in the Commitment under Section 2.5 and
Section 2.6 hereof and repayments of the Loans under Section 2.7 hereof,
$70,000,000, and (b) thereafter, after giving effect to reductions in the
Commitment under Section 2.5 and Section 2.6 hereof and repayments of the Loans
under Section 2.7 hereof, the lesser of (i) the Commitment and (ii) the maximum
amount of the Loans that could be outstanding hereunder on such date without
resulting in a breach of Section 7.8 or Section 7.10 hereof.
"Banks" shall mean the Persons whose names appear as "Banks" on the
signature pages hereof and any other Person which becomes a "Bank" hereunder
after the Agreement Date; and "Bank" shall mean any one of the foregoing Banks.
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"Base Rate" shall mean, at any time, a fluctuating interest rate per
annum equal to the higher of (a) the rate of interest quoted from time to time
by the Administrative Agent as its "prime rate" or "base rate" or (b) the
Federal Funds Rate plus one-half of one percent (1/2%). The Base Rate is not
necessarily the lowest rate of interest charged by the Administrative Agent in
connection with extensions of credit.
"Base Rate Advance" shall mean an Advance which the Borrower requests
to be made as a Base Rate Advance or is reborrowed as a Base Rate Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $1,000,000, and in an integral multiple of
$500,000.
"Base Rate Basis" shall mean a simple interest rate equal to the sum
of (i) the Base Rate and (ii) the Applicable Margin applicable to Base Rate
Advances. The Base Rate Basis shall be adjusted automatically as of the opening
of business on the effective date of each change in the Base Rate to account for
such change, and shall also be adjusted to reflect changes of the Applicable
Margin applicable to Base Rate Advances.
"Borrower" shall mean American Tower Systems, Inc., a Delaware
corporation.
"Borrower's Pledge Agreement" shall mean that certain Borrower's
Pledge Agreement dated as of even date herewith between the Borrower and the
Administrative Agent, substantially in the form of Exhibit A attached hereto,
pursuant to which the Borrower has pledged to the Administrative Agent for the
ratable benefit of the Banks all of the Borrower's stock ownership and/or any
partnership interests in each of its Subsidiaries.
"Borrower's Security Agreement" shall mean that certain Security
Agreement dated as of even date herewith, made by the Borrower in favor of the
Administrative Agent for the ratable benefit of the Banks, substantially in the
form of Exhibit B attached hereto.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
Houston, Texas, New York, New York and London, England, as relevant to the
determination to be made or the action to be taken.
"Capital Expenditures" shall mean, for any period, expenditures
(including the aggregate amount of Capitalized Lease Obligations required to be
paid during such period) incurred by any Person to acquire or construct fixed
assets, plant and equipment (including renewals, improvements and replacements,
but excluding repairs and maintenance) during such period, which
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would be required to be capitalized on the balance sheet of such Person in
accordance with GAAP.
"Capital Stock" shall mean, as applied to any Person, any capital
stock of such Person, regardless of class or designation, and all warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls or
claims of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"Certificate of Financial Condition" shall mean a certificate,
substantially in the form of Exhibit C attached hereto, signed by the chief
financial officer of the Borrower, together with any schedules, exhibits or
annexes appended thereto.
"Change of Control" shall mean, as applied to the Borrower, any change
in the ownership of, or lien upon, the stock of the Borrower that results in (a)
less than fifty-one percent (51%) of all voting rights with respect to the
Capital Stock of the Borrower (including, without limitation, warrants, options,
conversion rights, voting rights and calls or claims of any character with
respect thereto, to the extent exercisable prior to repayment in full of the
Obligations) being owned, directly or indirectly, by the Parent, the senior
management of American Radio Systems, the Parent and/or the Borrower or
Affiliates of American Radio Systems, the Parent or the Borrower or (b) American
Radio Systems having no direct or indirect ownership interest in the Capital
Stock of the Borrower.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean any property of any kind constituting
collateral for the Obligations under any of the Security Documents.
"Commitment" shall mean the several obligations of the Banks to fund
their respective portion of the Loans to the Borrower in accordance with their
respective Commitment Ratios in the aggregate sum of up to $90,000,000, pursuant
to the terms hereof, as such obligations may be reduced from time to time
pursuant to the terms hereof.
"Commitment Ratios" shall mean the percentages in which the Banks are
severally bound to fund their respective portion of
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Advances to the Borrower under the Commitment, which are set forth below
(together with dollar amounts) as of the Agreement Date:
Bank Approximate Dollar
Percentage Commitment
---------- ----------
Toronto Dominion (Texas), Inc. 22.22222222% $20,000,000.00
Banque Paribas 16.66666667% $15,000,000.00
Bank of Montreal 13.00000000% $12,000,000.00
Credit Suisse 13.33333333% $12,000,000.00
Union Bank of California, N.A. 13.33333333% $12,000,000.00
Signet Bank 10.55555556% $9,500,000.00
Fleet National Bank 10.00000000% $9,500,000.00
============ ==============
100.00% $90,000,000.00
"Communications Act" shall mean the Communications Act of 1934, and
any similar or successor federal statute, and the rules and regulations of the
FCC thereunder, all as the same may be in effect from time to time.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1 hereof, regardless of whether there shall have occurred
any passage of time or giving of notice, or both, that would be necessary in
order to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to
the sum of (a) the Base Rate, plus (b) the Applicable Margin for Base Rate
Advances plus (c) two percent (2%).
"Employee Pension Plan" shall mean any Plan which is maintained by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to public health, safety or the
pollution or protection of the environment, including, without limitation, those
relating to releases, discharges, emissions, spills, leaching, or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any fraction
thereof, or other hydrocarbons), pollutants or contaminants, to exposure to
toxic,
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hazardous or other controlled, prohibited, or regulated substances, including,
without limitation, any such provisions under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601
et seq.), or the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. ss. 6901 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations of
which the Borrower is a member and which is covered by a Plan.
"Eurodollar Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D), whether or not any Bank
has any such Eurocurrency Liabilities subject to such reserve requirement at
that time.
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time, or both,
has been satisfied.
"Excess Cash Flow" shall mean, as of the end of any fiscal year of the
Borrower based on the audited financial statements provided under Section 6.2
hereof for such fiscal year, the excess, if any, of (a) Operating Cash Flow for
such fiscal year, minus (b) the sum of the following: (i) payments made with
respect to Capital Expenditures incurred by the Borrower and its Restricted
Subsidiaries during such fiscal year; (ii) repayments of the Loans resulting
from reductions of the Commitment (which shall include any reductions set forth
in Section 2.5(a) hereof); (iii) cash taxes paid by the Borrower and its
Restricted Subsidiaries (including any paid to American Radio Systems pursuant
to the Tax Sharing Agreement) during such fiscal year; (iv) Interest Expense
during such fiscal year; and (v) principal payments made in respect of
Indebtedness for Money Borrowed (other than with respect to the Loans) paid by
the Borrower and its Restricted Subsidiaries during such fiscal year.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted average
of the rates on overnight federal funds
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transactions with the 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 New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three (3) federal funds brokers of recognized standing
selected by the Administrative Agent.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean
and include (a) a guaranty, direct or indirect, in any manner, of all or any
part of such obligation, and (b) any agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit or capital call requirements.
"Indebtedness" shall mean, with respect to any Person, and without
duplication, (a) all items, except items of shareholders' and partners' equity
or capital stock or surplus or general contingency or deferred tax reserves,
which in accordance with GAAP would be included in determining total liabilities
as shown on the liability side of a balance sheet of such Person, including,
without limitation, with respect to any secured non-recourse obligations of such
Person, the higher of the book value or fair market value of the property or
asset securing such obligation (if less than the amount of such obligation), (b)
all direct or indirect obligations of any other Person secured by any Lien to
which any property or asset owned by such Person is subject, but only to the
extent of the higher of the fair market value or the book value of the property
or asset subject to such Lien (if less than the amount of such obligation), if
the obligation secured thereby shall not have been assumed, (c) to the extent
not otherwise included, all Capitalized Lease Obligations of such Person and all
obligations of such Person with respect to leases constituting part of a sale
and lease-back arrangement, (d) all reimbursement obligations with respect to
outstanding letters of credit, and (e) to the extent not otherwise included, all
obligations subject to Guaranties of such Person or its Subsidiaries, and (f)
all obligations of such Person under Interest Hedge Agreements.
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"Indebtedness for Money Borrowed" shall mean, with respect to any
Person, Indebtedness for money borrowed and Indebtedness represented by notes
payable and drafts accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar instruments, all
Indebtedness upon which interest charges are customarily paid (other than trade
payables arising in the ordinary course of business, but only if and so long as
such accounts are payable on customary trade terms), all Capitalized Lease
Obligations, all reimbursement obligations with respect to outstanding letters
of credit, all Indebtedness issued or assumed as full or partial payment for
property or services (other than trade payables arising in the ordinary course
of business, but only if and so long as such accounts are payable on customary
trade terms), whether or not any such notes, drafts, obligations or Indebtedness
represent Indebtedness for money borrowed, and, without duplication, Guaranties
of any of the foregoing. For purposes of this definition, interest which is
accrued but not paid on the scheduled due date for such interest shall be deemed
Indebtedness for Money Borrowed.
"Indemnitee" shall have the meaning ascribed thereto in Section 5.12
hereof.
"Interest Coverage Ratio" shall mean, for any period, the ratio of (a)
Annualized Operating Cash Flow as of (i) the calendar quarter end being tested,
or (ii) the most recently completed calendar quarter, as the case may be, to (b)
Interest Expense for (i) the four (4) calendar quarter period then ended or (ii)
the most recently completed four (4) calendar quarter period, as the case may
be, in each case calculated in accordance with GAAP.
"Interest Expense" shall mean, for any period, all cash interest
expense (including imputed interest with respect to Capitalized Lease
Obligations) with respect to any Indebtedness for Money Borrowed of the Borrower
and its Restricted Subsidiaries on a consolidated basis during such period
pursuant to the terms of such Indebtedness for Money Borrowed, together with all
fees payable in respect thereof, all as calculated in accordance with GAAP.
"Interest Hedge Agreements" shall mean the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without
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limitation, interest rate swaps, caps, floors, collars and similar agreements.
"Interest Period" shall mean (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made and ending on the
last day of the calendar quarter in which such Advance is made, provided,
however, that if a Base Rate Advance is made on the last day of any calendar
quarter, it shall have an Interest Period ending on, and its Payment Date shall
be, the last day of the following calendar quarter, and (b) in connection with
any LIBOR Advance, the term of such Advance selected by the Borrower or
otherwise determined in accordance with this Agreement. Notwithstanding the
foregoing, however, (i) any applicable Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the next succeeding
Business Day unless, with respect to LIBOR Advances only, such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day, (ii) any applicable Interest Period, with
respect to LIBOR Advances only, which begins on a day for which there is no
numerically corresponding day in the calendar month during which such Interest
Period is to end shall (subject to clause (i) above) end on the last day of such
calendar month, and (iii) the Borrower shall not select an Interest Period which
extends beyond the Maturity Date or such earlier date as would interfere with
the Borrower's repayment obligations under Section 2.5, Section 2.6 or Section
2.7 hereof. Interest shall be due and payable with respect to any Advance as
provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR
Basis, as appropriate.
"known to the Borrower" or "to the knowledge of the Borrower" shall
mean known by or reasonably should have been known by the executive officers of
the Borrower (which shall include, without limitation, the chief executive
officer, the chief operating officer, if any, the chief financial officer and
the general counsel, or any vice president of the Borrower).
"Leasing Operating Expenses" shall mean, for any period, operating
expenses for such period attributable to the leasing operations of the Borrower
and its Restricted Subsidiaries based upon the ratio of the number of sites
owned or leased by the Borrower and its Restricted Subsidiaries to the total
number of all sites owned, leased and managed by the Borrower and its Restricted
Subsidiaries.
"Leasing Overhead" shall mean, for any period, corporate overhead
(exclusive of amortization and depreciation) attributable to the leasing
operations of the Borrower and its Restricted Subsidiaries for such period based
upon the ratio of
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the number of sites owned or leased by the Borrower and its Restricted
Subsidiaries to the total of all sites owned, leased and managed by the Borrower
and its Restricted Subsidiaries.
"Leverage Ratio" shall mean, as of any date, the ratio of (a) the
Total Debt of the Borrower and its Restricted Subsidiaries on a consolidated
basis on such date, to (b) Annualized Operating Cash Flow of the Borrower and
its Restricted Subsidiaries on a consolidated basis for (x) all periods ending
prior to January 1, 1998, the calendar month end being tested or the most
recently completed calendar month, as the case may be and (y) all periods ending
thereafter, the calendar quarter end being tested or the most recently completed
calendar quarter, as the case may be.
"LIBOR" shall mean, for any Interest Period, the average of the
interest rates per annum at which deposits in United States Dollars for such
Interest Period are offered to the Administrative Agent in the Eurodollar market
at approximately 11:00 a.m. (London time) two (2) Business Days before the first
day of such Interest Period, in an amount approximately equal to the principal
amount of, and for a length of time approximately equal to the Interest Period
for, the LIBOR Advance sought by the Borrower.
"LIBOR Advance" shall mean an Advance which the Borrower requests to
be made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $5,000,000 and in an integral multiple of
$1,000,000.
"LIBOR Basis" shall mean a simple per annum interest rate (rounded
upward, if necessary, to the nearest one-hundredth (1/100th) of one percent)
equal to the sum of (a) the quotient of (i) the LIBOR divided by (ii) one minus
the Eurodollar Reserve Percentage, if any, stated as a decimal, plus (b) the
Applicable Margin. The LIBOR Basis shall apply to Interest Periods of one (1),
two (2), three (3), or six (6) months, and, once determined, shall remain
unchanged during the applicable Interest Period, except for changes to reflect
adjustments in the Eurodollar Reserve Percentage and the Applicable Margin as
adjusted pursuant to Section 2.3(f) hereof. The LIBOR Basis for any LIBOR
Advance shall be adjusted as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Licenses" shall mean any telephone, microwave, radio transmissions,
personal communications or other license, authorization, certificate of
compliance, franchise, approval or permit, whether for the construction, the
ownership or the operation of any communications tower facilities, granted or
issued by the FCC and held by the Borrower or any of its
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Restricted Subsidiaries, all of which as of the Agreement Date are listed on
Schedule 1 attached hereto.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not xxxxxx, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Borrower's
Pledge Agreement, the Borrower's Security Agreement, the Subsidiary Security
Agreement, the Subsidiary Guaranty, the Subsidiary Pledge Agreement, the Parent
Pledge Agreement, all fee letters, all Requests for Advance, all Interest Hedge
Agreements between the Borrower, on the one hand, and the Administrative Agent
and the Banks, or any of them, on the other hand, and all other documents and
agreements executed or delivered by the Borrower or its Restricted Subsidiaries
in connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, the amounts advanced by the Banks to
the Borrower under the Commitment, not to exceed the Commitment, and evidenced
by the Notes.
"Majority Banks" shall mean (i) at any time that no Loans are
outstanding hereunder, Banks the total of whose Commitment Ratios equals or
exceeds sixty percent (60%) of the Commitment Ratios of all Banks entitled to
vote hereunder, or (ii) at any time that there are Loans outstanding hereunder,
Banks the total of whose Loans outstanding equals or exceeds sixty percent (60%)
of the total principal amount of the Loans then outstanding of all Banks
entitled to vote hereunder.
"Management Operating Expenses" shall mean, for any period, operating
expenses attributable to the management operations of the Borrower and its
Restricted Subsidiaries for such period based upon the ratio of the number of
sites managed by the Borrower and its Restricted Subsidiaries to the total
number of all sites owned, leased and managed by the Borrower and its Restricted
Subsidiaries.
"Management Overhead" shall mean, for any period, corporate overhead
(exclusive of amortization and depreciation) attributable to the management
operations of the Borrower and its Restricted Subsidiaries based upon the ratio
of the number of sites managed by the Borrower and its Restricted Subsidiaries
to the total number of all sites owned, leased and managed by the Borrower and
its Restricted Subsidiaries.
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"Materially Adverse Effect" shall mean (a) any material adverse effect
upon the business, assets, business prospects, liabilities, financial condition,
results of operations or properties of the Borrower and its Restricted
Subsidiaries on a consolidated basis, taken as a whole, or (b) a material
adverse effect upon the binding nature, validity, or enforceability of this
Agreement and the Notes, or upon the ability of the Borrower and its Restricted
Subsidiaries to perform the payment obligations or other material obligations
under this Agreement or any other Loan Document, or upon the value of the
Collateral or upon the rights, benefits or interests of the Banks in and to the
Loans or the rights of the Administrative Agent and the Banks in the Collateral;
in either case, whether resulting from any single act, omission, situation,
status, event or undertaking, or taken together with other such acts, omissions,
situations, statuses, events or undertakings.
"Maturity Date" shall mean December 31, 2004, or, as the case may be,
such earlier date as payment of the Obligations shall be due (whether by
acceleration, reduction of the Commitment to zero or otherwise).
"Multiemployer Plan" shall mean a multiemployer pension plan as
defined in Section 3(37) of ERISA to which the Borrower, any of its Subsidiaries
or any ERISA Affiliate is or has been required to contribute.
"Necessary Authorizations" shall mean all approvals and licenses from,
and all filings and registrations with, any governmental or other regulatory
authority, including, without limiting the foregoing, the Licenses and all
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrower and its Restricted Subsidiaries to
own, construct, maintain, and operate communications tower facilities and to
invest in other Persons who own, construct, maintain, manage and operate
communications tower facilities.
"Net Income" shall mean, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Net Proceeds" shall mean, with respect to any sale, lease, transfer
or other disposition of assets by the Borrower or any of its Restricted
Subsidiaries, the aggregate amount of cash received for such assets (including,
without limitation, any payments received for non-competition covenants,
consulting or management fees in connection with such sale, and any portion of
the amount received evidenced by a promissory note or other evidence of
Indebtedness issued by the purchaser), net of (i) amounts reserved, if any, for
taxes payable with respect to any such sale (after application (assuming
application first to
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such reserves) of any available losses, credits or other offsets), (ii)
reasonable and customary transaction costs properly attributable to such
transaction and payable by the Borrower or any of its Restricted Subsidiaries
(other than to an Affiliate) in connection with such sale, lease, transfer or
other disposition of assets, including, without limitation, commissions, and
(iii) until actually received by the Borrower or any of its Restricted
Subsidiaries, any portion of the amount received held in escrow or evidenced by
a promissory note or other evidence of Indebtedness issued by a purchaser or
non-compete, consulting or management agreement or covenant or otherwise for
which compensation is paid over time. Upon receipt by the Borrower or any of its
Restricted Subsidiaries of (A) amounts referred to in item (iii) of the
preceding sentence, or (B) if there shall occur any reduction in the tax
reserves referred to in item (i) of the preceding sentence resulting in a
payment to the Borrower, such amounts shall then be deemed to be "Net Proceeds."
"Notes" shall mean, collectively, those certain promissory notes in
the aggregate original principal amount of $90,000,000, and issued to each of
the Banks by the Borrower, each one substantially in the form of Exhibit D
attached hereto, any other promissory note issued by the Borrower to evidence
the Loans pursuant to this Agreement, and any extensions, renewals, or
amendments to, or replacements of, the foregoing.
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Borrower, its Restricted Subsidiaries,
and any other obligors to the Banks, or the Administrative Agent, or any of
them, under this Agreement and the other Loan Documents (including any interest,
fees and other charges on the Loans or otherwise under the Loan Documents that
would accrue but for the filing of a bankruptcy action with respect to the
Borrower, whether or not such claim is allowed in such bankruptcy action and
including Obligations to the Banks pursuant to Section 5.13 hereof) as they may
be amended from time to time, or as a result of making the Loans, whether such
obligations are direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, arising by operation of law
or otherwise, now existing or hereafter arising.
"Operating Cash Flow" shall mean, (a) with respect to the Borrower and
its Restricted Subsidiaries on a consolidated basis as of the end of any period
from the Agreement Date through and including June 30, 1997, (i) the sum of (A)
operating revenues of the Borrower and its Restricted Subsidiaries plus (B)
Unrestricted Subsidiary Distributions during such period less (ii) the sum of
(A) operating expenses for such period plus (B) corporate overhead (exclusive of
amortization and depreciation)
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for such period; and (b) with respect to the Borrower and its Restricted
Subsidiaries on a consolidated basis as of the end of any period ending after
June 30, 1997, the sum of (i) (A) operating revenues from leasing operations for
such period minus (B) the sum of (1) Leasing Operating Expenses for such period,
and (2) Leasing Overhead for such period, plus (ii) the lesser of (A) (1)
operating revenues from management agreement operations, minus (2) the sum of
(x) Management Operating Expenses and (y) Management Overhead ("Management
Operations Cash Flow") for such period and (B) ten percent (10%) of the amount
calculated under clause (b)(i) above for such period plus (iii) to the extent
that the total amount of Management Operations Cash Flow for such period is
greater than the amount calculated pursuant to clause (b)(ii) above, fifty
percent (50%) of such excess amount plus (iv) Unrestricted Subsidiary
Distributions for such period. In the case of determining Operating Cash Flow
under Sections 2.3, 7.8, 7.9 and 7.10 hereof following an Acquisition permitted
hereunder, Operating Cash Flow of the Borrower and its Restricted Subsidiaries
shall include the Acquisition Operating Cash Flow. For purposes of calculating
Operating Cash Flow in connection with any Advance for an Acquisition, Operating
Cash Flow for the Borrower and its Restricted Subsidiaries as of the last day of
the immediately preceding calendar quarter and/or calendar month end, as the
case may be, shall include "operating cash flow" for the Acquisition for the
same period after giving effect to adjustments reasonably satisfactory to the
Administrative Agent.
"Parent" shall mean American Tower Systems Holding Corporation, a
Delaware corporation.
"Parent Pledge Agreement" shall mean that certain Parent Pledge
Agreement dated as of even date herewith, made by Parent in favor of the
Administrative Agent for the ratable benefit of the Banks, substantially in the
form of Exhibit E attached hereto.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean, as applied to any Person:
(a) any Lien in favor of the Administrative Agent given to
secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments, judgments, governmental charges or levies or claims the
non-payment of which
-15-
is being diligently contested in good faith by appropriate proceedings and for
which adequate reserves have been set aside on such Person's books, but only so
long as no foreclosure, distraint, sale or similar proceedings have been
commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, vendors,
(solely to the extent arising by operation of law) laborers and materialmen
incurred in the ordinary course of business for sums not yet due or being
diligently contested in good faith, if reserves or appropriate provisions shall
have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance, social
security obligations, assessments or government charges which are not overdue
for more than sixty (60) days;
(e) restrictions on the transfer of the Licenses or assets of
the Borrower or its Restricted Subsidiaries imposed by any of the Licenses as
presently in effect or by the Communications Act and any regulations thereunder;
(f) easements, rights-of-way, zoning restrictions, licenses,
reservations or restrictions on use and other similar encumbrances on the use of
real property which do not materially interfere with the ordinary conduct of the
business of such Person or the use of such property;
(g) liens arising by operation of law in favor of purchasers
in connection with any asset sale permitted hereunder; provided that such lien
only encumbers the property being sold.
(h) Liens reflected by Uniform Commercial Code financing
statements filed in respect of Capitalized Lease Obligations permitted pursuant
to Section 7.1 hereof and true leases of the Borrower or any of its
Subsidiaries;
(i) Liens to secure performance of statutory obligations,
surety or appeal bonds, performance bonds, bids, tenders or escrow deposits in
connection with permitted Acquisitions;
(j) judgment Liens which do not result in an Event of Default
under Section 8.1(h) hereof;
(k) Liens in connection with escrow deposits made in
connection with Acquisitions permitted hereunder; and
(l) additional Liens securing Indebtedness which does not in
the aggregate outstanding at any time exceed $500,000.
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"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Philadelphia Disposition" shall mean the sale by the Borrower of
certain real property located in Philadelphia, Pennsylvania and more
particularly described on Schedule 2 attached hereto.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other employee benefit plan maintained for
employees of any Person or any affiliate of such Person.
"Pro Forma Debt Service" shall mean with respect to the Borrower and
its Restricted Subsidiaries, on a consolidated basis, with respect to the next
succeeding complete twelve (12) month period following the calculation date, and
after giving effect to any Interest Hedge Agreements and LIBOR Advances, the sum
of the amount of all (i) scheduled payments of principal on Indebtedness for
Money Borrowed (determined with respect to the Loans only, as the difference
between the outstanding principal amount of the Loans on the calculation date
and the amount the Commitment will be after the reductions thereof set forth in
Section 2.5 hereof for such four calendar quarter period have taken effect) for
such period, (ii) Interest Expense for such period, (iii) fees payable under
this Agreement for such period, and (iv) other payments payable by such Persons
during such period in respect of Indebtedness for Money Borrowed (other than
voluntary repayments under Section 2.7 hereof). For purposes of this definition,
where interest payments for the twelve (12) month period immediately succeeding
the calculation date are not fixed by way of Interest Hedge Agreements, LIBOR
Advances, or otherwise for the entire period, interest shall be calculated on
such Indebtedness for Money Borrowed for periods for which interest payments are
not so fixed at the lesser of (a) the LIBOR Basis (based on the then current
adjustment under Section 2.3(f) hereof) for a LIBOR Advance having an Interest
Period of six (6) months as determined on the date of calculation and (b) the
Base Rate Basis as in effect on the date of calculation; provided, however, that
if such LIBOR Basis cannot be determined in the reasonable opinion of the
Administrative Agent, such interest shall be calculated using the Base Rate
Basis as then in effect.
"Reportable Event" shall mean, with respect to any Employee Pension
Plan, an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a
"Request for Advance," signed by an Authorized Signatory of the Borrower
requesting an Advance hereunder, which shall be in
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substantially the form of Exhibit F attached hereto, and shall, among other
things, (i) specify the date of the Advance, which shall be a Business Day, the
amount of the Advance, the type of Advance (Eurodollar or Base Rate), and, with
respect to LIBOR Advances, the Interest Period selected by the Borrower, (ii)
state that there shall not exist, on the date of the requested Advance and after
giving effect thereto, a Default, as of the date of such Advance and after
giving effect thereto, and (iii) the Applicable Margin then in effect.
"Restricted Payment" shall mean any direct or indirect distribution,
dividend or other payment to any Person (other than to the Borrower or any
Restricted Subsidiary of the Borrower) on account of any general or limited
partnership interest in, or shares of Capital Stock or other securities of, the
Borrower or any of its Restricted Subsidiaries (other than dividends payable
solely in stock of such Person and stock splits), including, without limitation,
any direct or indirect distribution, dividend or other payment to any Person
(other than to the Borrower or any Restricted Subsidiary of the Borrower) on
account of any warrants or other rights or options to acquire shares of Capital
Stock of the Borrower or any of its Restricted Subsidiaries.
"Restricted Subsidiary" shall mean any Subsidiary of the Borrower
other than an Unrestricted Subsidiary.
"Security Documents" shall mean the Borrower's Pledge Agreement, the
Subsidiary Guaranty, the Subsidiary Pledge Agreement, the Borrower's Security
Agreement, the Subsidiary Security Agreement, the Parent Pledge Agreement, any
other agreement or instrument providing collateral for the Obligations whether
now or hereafter in existence, and any filings, instruments, agreements, and
documents related thereto or to this Agreement, and providing the Administrative
Agent, for the benefit of the Banks, with Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the
Administrative Agent, for the benefit of the Banks, created hereunder or under
any of the Security Documents to secure the Obligations.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership of which more than fifty percent (50%) of the outstanding
partnership interests, is at the time owned directly or indirectly by such
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Person, or by one or more Subsidiaries of such Person, or by such Person and one
or more Subsidiaries of such Person, or (b) any other entity which is directly
or indirectly controlled or capable of being controlled by such Person, or by
one or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person.
"Subsidiary Guaranty" shall mean that certain Subsidiary Guaranty
dated as of even date herewith, in favor of the Administrative Agent and the
Banks, given by each Restricted Subsidiary of the Borrower, substantially in the
form of Exhibit G hereof, and shall include any similar agreements executed
pursuant to Section 5.14 hereof.
"Subsidiary Pledge Agreement" shall mean that certain Subsidiary
Pledge Agreement dated as of even date herewith made by each Restricted
Subsidiary of the Borrower having one or more of its own Subsidiaries, on the
one hand, in favor of the Administrative Agent, on the other hand, substantially
in the form of Exhibit H hereof, and shall include any similar agreements
executed pursuant to Section 5.14 hereof.
"Subsidiary Security Agreement" shall mean that certain Subsidiary
Security Agreement dated as of even date herewith between each of the Borrower's
Restricted Subsidiaries, on the one hand, and the Administrative Agent, (on
behalf of itself and the Banks), on the other hand, substantially in the form of
Exhibit I hereof, and shall include any similar agreements executed pursuant to
Section 5.14 hereof.
"Tax Sharing Agreement" shall mean that certain Tax Sharing Agreement,
dated as of October 15, 1996, among Borrower, American Radio Systems and certain
other Subsidiaries of American Radio Systems.
"Total Debt" shall mean, for the Borrower and its Restricted
Subsidiaries on a consolidated basis as of any date, the sum (without
duplication) of (i) the outstanding principal amount of the Loans, (ii) the
aggregate amount of Capitalized Lease Obligations and Indebtedness for Money
Borrowed, and (iii) the aggregate amount of all Guarantees.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Borrower or
any joint venture (which may represent a minority interest) between the Borrower
and/or any Subsidiary of the Borrower and any other Person, in each case, which
the Borrower has heretofore designated or hereafter designates as an
Unrestricted Subsidiary by written notice to the Administrative Agent and the
Banks prior to the formation or acquisition of such Subsidiary or joint venture.
Notwithstanding the foregoing, no Restricted Subsidiary may be re-designated as
an Unrestricted
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Subsidiary without the prior consent of the Majority Banks. The Unrestricted
Subsidiaries as of the Agreement Date are as set forth on Schedule 3 attached
hereto.
"Unrestricted Subsidiary Distributions" shall mean, (a) for any period
ending prior to June 30, 1997, the amount of any distributions received during
such period by the Borrower and its Restricted Subsidiaries from any
Unrestricted Subsidiaries (other than in connection with the repayment of
intercompany Indebtedness) and (b) for all periods after June 30, 1997, the
lesser of (i) the amount of cash distributions received during such period by
the Borrower and its Restricted Subsidiaries from any Unrestricted Subsidiary
(other than in connection with the repayment of intercompany Indebtedness) and
(ii) fifteen percent (15%) of the sum of clauses (b)(i), (b)(ii) and (b)(iii) of
the definition of "Operating Cash Flow" set forth herein.
"Use of Proceeds Letter" shall mean that certain Use of Proceeds
Letter, substantially in the form of Exhibit J attached hereto, to be delivered
to the Administrative Agent and the Banks on the date of any Advance hereunder.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended or supplemented from time to time in accordance
herewith.
ARTICLE 2
Loans
Section 2.1 The Loans. The Banks agree, severally, in accordance
with their respective Commitment Ratios and not jointly, upon the terms and
subject to the conditions of this Agreement and provided there exists no Default
or Event of Default hereunder, to lend to the Borrower, prior to the Maturity
Date, an amount not at any one time outstanding to exceed, in the aggregate, the
Available Commitment. Subject to the terms and conditions hereof and provided
there exists no Default or Event of Default hereunder, Advances under the
Commitment may be repaid and reborrowed from time to time on a revolving basis.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance under the
Commitment shall, at the option of the Borrower, be made as a Base Rate Advance
or a LIBOR Advance; provided, however, that at such time as there shall have
occurred and be continuing a Default hereunder, the Borrower shall not have the
right to receive a LIBOR Advance. Any notice given to the Administrative Agent
in connection with a requested Advance hereunder shall be
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given to the Administrative Agent prior to 11:00 a.m. (New York time) in order
for such Business Day to count toward the minimum number of Business Days
required.
(b) Base Rate Advances.
(i) Advances. The Borrower shall give the
Administrative Agent in the case of Base Rate Advances at least one
(1) Business Day's irrevocable prior telephonic notice followed
immediately by a Request for Advance; provided, however, that the
Borrower's failure to confirm any telephonic notice with a Request for
Advance shall not invalidate any notice so given if acted upon by the
Administrative Agent. Upon receipt of such notice from the Borrower,
the Administrative Agent shall promptly notify each Bank by telephone
or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. The Borrower may
repay or prepay a Base Rate Advance without regard to its Payment Date
and (A) upon at least one (1) Business Day's irrevocable prior
telephonic notice followed by written notice, reborrow all or a
portion of the principal amount thereof as a Base Rate Advance, (B)
upon at least three (3) Business Days' irrevocable prior telephonic
notice followed by written notice, reborrow all or a portion of the
principal thereof as one or more LIBOR Advances, or (C) not reborrow
all or any portion of such Base Rate Advance. On the date indicated by
the Borrower, such Base Rate Advance shall be so repaid and, as
applicable, reborrowed. The failure to give timely notice hereunder
with respect to the Payment Date of any Base Rate Advance shall be
considered a request for a Base Rate Advance.
(c) LIBOR Advances.
(i) Advances. Upon request, the Administrative Agent,
whose determination in absence of manifest error shall be conclusive,
shall determine the available LIBOR Bases and shall notify the
Borrower of such LIBOR Bases. The Borrower shall give the
Administrative Agent in the case of LIBOR Advances at least three (3)
Business Days' irrevocable prior telephonic notice followed
immediately by a Request for Advance; provided, however, that the
Borrower's failure to confirm any telephonic notice with a Request for
Advance shall not invalidate any notice so given if acted upon by the
Administrative Agent. Upon receipt of such notice from the Borrower,
the Administrative Agent shall promptly notify each Bank by telephone
or telecopy of the contents thereof.
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(ii) Repayments and Reborrowings. At least three (3)
Business Days prior to the Payment Date for each LIBOR Advance, the
Borrower shall give the Administrative Agent telephonic notice
followed by written notice specifying whether all or a portion of such
LIBOR Advance (A) is to be repaid and then reborrowed in whole or in
part as one or more LIBOR Advances, (B) is to be repaid and then
reborrowed in whole or in part as a Base Rate Advance, or (C) is to be
repaid and not reborrowed. The failure to give such notice shall
preclude the Borrower from reborrowing such Advance as a LIBOR Advance
on its Payment Date and shall be considered a request for a Base Rate
Advance. Upon such Payment Date such LIBOR Advance will, subject to
the provisions hereof, be so repaid and, as applicable, reborrowed.
(d) Notification of Banks. Upon receipt of a Request for
Advance, or a notice from the Borrower with respect to any outstanding Advance
prior to the Payment Date for such Advance, the Administrative Agent shall
promptly but no later than the close of business on the day of such notice
notify each Bank by telephone or telecopy of the contents thereof and the amount
of such Bank's portion of the Advance. Each Bank shall, not later than 12:00
noon (New York time) on the date of borrowing specified in such notice, make
available to the Administrative Agent at the Administrative Agent's Office, or
at such account as the Administrative Agent shall designate, the amount of its
portion of any Advance which represents an additional borrowing hereunder in
immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York time) on the date of
an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse
the amounts made available to the Administrative Agent by the Banks in
like funds by (A) transferring the amounts so made available by wire
transfer pursuant to the Borrower's instructions, or (B) in the
absence of such instructions, crediting the amounts so made available
to the account of the Borrower maintained with the Administrative
Agent.
(ii) Unless the Administrative Agent shall have
received notice from a Bank prior to 12:00 noon (New York time) on the
date of any Advance that such Bank will not make available to the
Administrative Agent such Bank's ratable portion of such Advance, the
Administrative Agent may assume that such Bank has made or will make
such portion available to the Administrative Agent on the date of such
Advance and the Administrative Agent may in its sole discretion and in
reliance upon such assumption, make
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available to the Borrower on such date a corresponding amount. If and
to the extent the Bank does not make such ratable portion available to
the Administrative Agent, such Bank agrees to repay to the
Administrative Agent on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at the Federal Funds Rate.
(iii) If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall
constitute such Bank's portion of the applicable Advance for purposes
of this Agreement. If such Bank does not repay such corresponding
amount immediately upon the Administrative Agent's demand therefor,
the Administrative Agent shall notify the Borrower and the Borrower
shall immediately pay such corresponding amount to the Administrative
Agent, with interest at the Federal Funds Rate. The failure of any
Bank to fund its portion of any Advance shall not relieve any other
Bank of its obligation, if any, hereunder to fund its respective
portion of the Advance on the date of such borrowing, but no Bank
shall be responsible for any such failure of any other Bank.
(iv) In the event that, at any time when the Borrower
is not in Default and has otherwise satisfied each of the conditions
in Section 3.2 hereof, a Bank for any reason fails or refuses to fund
its portion of an Advance and such failure shall continue for a period
in excess of thirty (30) days, then, until such time as such Bank has
funded its portion of such Advance (which late funding shall not
absolve such Bank from any liability it may have to the Borrower), or
all other Banks have received payment in full from the Borrower
(whether by repayment or prepayment) or otherwise of the principal and
interest due in respect of such Advance, such non-funding Bank shall
not have the right (A) to vote regarding any issue on which voting is
required or advisable under this Agreement or any other Loan Document,
and such Bank's portion of the Loans shall not be counted as
outstanding for purposes of determining "Majority Banks" hereunder,
and (B) to receive payments of principal, interest or fees from the
Borrower, the Administrative Agent or the other Banks in respect of
its portion of the Loans.
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Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate
Advance shall be computed on the basis of a year of 365/366 days for the actual
number of days elapsed and shall be payable at the Base Rate Basis for such
Advance, in arrears on the applicable Payment Date. Interest on Base Rate
Advances then outstanding shall also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance shall
be computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such LIBOR Advance shall also be
due and payable in arrears on every three-month anniversary of the beginning of
such Interest Period. Interest on LIBOR Advances then outstanding shall also be
due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate
Basis. If the Borrower fails to give the Administrative Agent timely notice of
its selection of a LIBOR Basis, or if for any reason a determination of a LIBOR
Basis for any Advance is not timely concluded, the Base Rate Basis shall apply
to such Advance.
(d) Interest Upon Default. Immediately upon the occurrence
of an Event of Default hereunder, the outstanding principal balance of the Loans
shall bear interest at the Default Rate. Such interest shall be payable on
demand by the Majority Banks and shall accrue until the earlier of (i) waiver or
cure of the applicable Event of Default, (ii) agreement by the Majority Banks
(or, if applicable to the underlying Event of Default, the Banks) to rescind the
charging of interest at the Default Rate, or (iii) payment in full of the
Obligations.
(e) LIBOR Contracts. At no time may the number of
outstanding LIBOR Advances exceed six (6).
(f) Applicable Margin. With respect to any Advance, the
Applicable Margin shall be as set forth in a certificate of the chief financial
officer of the Borrower delivered to the Administrative Agent based upon the
Applicable Margin Ratio for the most recent fiscal quarter end for which
financial statements
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are furnished by the Borrower to the Administrative Agent and each Bank for the
fiscal quarter most recently ended as follows:
Applicable Margin Ratio Base Rate Advance LIBOR Advance
Applicable Margin Applicable Margin
A. Greater than or equal 1.250% 2.500%
to 5.50:1
B. Greater than or equal 1.125% 2.375%
to 5.00:1, but less
than 5.50:1
C. Greater than or equal 0.875% 2.125%
to 4.50:1, but less
than 5.00:1
D. Greater than or equal 0.625% 1.875%
to 4.00:1, but less
than 4.50:1
E. Less than 4.00:1 0.250% 1.500%
Changes to the Applicable Margin shall be effective (i) with respect to an
increase in the Applicable Margin, as of the second (2nd) Business Day after the
day on which the financial statements are required to be delivered to the
Administrative Agent and the Banks pursuant to Section 6.1 or Section 6.2
hereof, as the case may be; provided, however, if such financial statements are
not delivered to the Administrative Agent and the Banks on or before the date
specified in such Section, such increase shall be effective as of the date
specified in such Section for delivery of the financial statements, and (ii)
with respect to a decrease in the Applicable Margin, as of the later of (A) the
second (2nd) Business Day after the day on which such financial statements are
required to be delivered pursuant to Section 6.1 or Section 6.2 hereof, as the
case may be, and (B) the date on which such financial statements are actually
delivered to the Administrative Agent and the Banks.
Upon the occurrence and during the continuance of an Event of Default,
the Applicable Margins shall not be subject to downward adjustment and shall
automatically revert to the Applicable Margins set forth in part A of the above
table until such time as such Event of Default is cured or waived.
Section 2.4 Commitment Fees.
(a) Commencing on the Agreement Date, and continuing until the date
of the first Advance hereunder, the Borrower agrees to pay to the Administrative
Agent for the account of each of the Banks, in accordance with its respective
Commitment Ratio, a
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commitment fee on the amount of the Commitment for each day from the Agreement
Date until the date of the first Advance hereunder of a rate of one-quarter of
one percent (0.250%) per annum, which fee shall be computed on the basis of a
year of 365/366 days for the actual number of days elapsed, shall be payable on
the date of the first Advance hereunder, and shall be fully earned when due and
non-refundable when paid.
(b) Commencing on the date of the first Advance hereunder and of all
times thereafter, the Borrower agrees to pay to the Administrative Agent for the
account of each of the Banks in accordance with its respective Commitment Ratio,
a commitment fee on the aggregate unborrowed balance of the Commitment for each
day from the date of the first Advance hereunder until the Maturity Date, at a
rate of (i) one-half of one percent (0.500%) per annum when the Applicable
Margin Ratio is greater than or equal to 4.00:1; and (ii) three-eighths of one
percent (0.375%) per annum when the Applicable Margin Ratio is less than 4.00:1.
Such commitment fee shall be computed on the basis of a year of 365/366 days for
the actual number of days elapsed, shall be payable quarterly in arrears on the
last Business Day of each calendar quarter, and shall be fully earned when due,
and shall be non-refundable when paid. A final payment of any commitment fee
then payable shall also be due and payable on the Maturity Date.
Section 2.5 Mandatory Commitment Reductions.
(a) Scheduled Reductions. Commencing on September 30, 1999
and at the end of each calendar quarter thereafter, the Commitment as of
September 29, 1999 shall be automatically and permanently reduced as set forth
below (which reductions are in addition to those set forth in Sections 2.5(b),
2.5(c), 2.5(d) and 2.6 hereof):
Quarterly Percentage
of Reduction of
Dates of Commitment Reduction Commitment as
of September 29, 1999
September 30, 1999 and December 31, 1999 3.750%
March 31, 2000, June 30, 2000, 3.125%
September 30, 2000 and December 31, 2000
March 31, 2001, June 30, 2001, 4.375%
September 30, 2001 and December 31, 2001
March 31, 2002, June 30, 2002, 5.625%
September 30, 2002 and December 31, 2002
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March 31, 2003, June 30, 2003, 5.625%
September 30, 2003 and December 31, 2003
March 31, 2004, June 30, 2004 4.375%
September 30, 2004 and Maturity Date
The Borrower shall make a repayment of the Loans outstanding, together with
accrued interest thereon, on or before the effective date of each reduction in
the Commitment under this Section 2.5(a), such that the aggregate principal
amount of the Loans outstanding at no time exceeds the Commitment as so reduced.
Any remaining unpaid principal and interest under the Commitment shall be due
and payable in full on the Maturity Date, and the Commitment shall thereupon
terminate.
(b) Reduction From Excess Cash Flow. On April 15, 2000, and
on each April 15 thereafter during the term of this Agreement, the Commitment
shall be permanently reduced by an amount equal to fifty percent (50%) of Excess
Cash Flow for the fiscal year immediately preceding the calculation date.
Reductions to the Commitment under this Section shall be applied to the
reductions set forth in Section 2.5(a) hereof in inverse order of the reductions
set forth therein.
(c) Reduction From Permitted Asset Sales. On the Business
Day following the date of receipt by the Borrower or any of its Restricted
Subsidiaries of the Net Proceeds of any asset sale permitted pursuant to Section
7.4 hereof (other than with respect to the Philadelphia Disposition), the
Commitment shall be automatically and permanently reduced by an amount equal to
such Net Proceeds; provided, however, that the Commitment shall not be required
to be reduced by such Net Proceeds until the amount of such unapplied Net
Proceeds exceeds $250,000 in the aggregate; provided, further, however, that the
Borrower may notify the Administrative Agent in writing that it intends to use
any or all of such Net Proceeds to acquire fixed or capital assets permitted by
Section 7.6 hereof within six (6) months of the date of receipt of such Net
Proceeds, in which case, the reduction in the Commitment up to the amount of the
Net Proceeds intended to be used which is otherwise required by this Section
2.5(c) need not be made, but if all or part of such Net Proceeds are not used or
irrevocably committed to be used within such 6-month period, the Commitment
shall be permanently reduced by an amount equal to such Net Proceeds on the
earlier of (i) the first day following the end of such 6-month period and (ii)
the date on which the
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Borrower has reasonably determined that such Net Proceeds shall not be so used.
Reductions to the Commitment under this Section shall be applied to the
reductions set forth in Section 2.5(a) hereof in inverse order of the reductions
set forth therein.
(d) Reduction From Sale of Capital Stock and Debt
Instruments. On the Business Day following the date of receipt by the Borrower
of the net proceeds of any sale its Capital Stock or debt instruments or other
securities (other than an amount not to exceed $2,000,000 in the aggregate from
the sale of securities in connection with any employee stock option plan of the
Borrower), the Commitment shall automatically and permanently be reduced by an
amount equal (i) 100% of such net proceeds to the extent the Leverage Ratio is
greater than or equal to 4.0:1; or (ii) 50% of such net proceeds to the extent
the Leverage Ratio is less than 4.0:1; provided, however, the provisions of this
Section 2.5(d) shall not apply to equity contributions by the Parent or American
Radio Systems. Reductions to the Commitment under this Section shall be applied
to the reductions set forth in Section 2.5(a) hereof in inverse order of the
reductions set forth therein.
Section 2.6 Voluntary Commitment Reductions. The Borrower shall
have the right, at any time and from time to time after the Agreement Date and
prior to the Maturity Date, upon at least three (3) Business Days' prior written
notice to the Administrative Agent, without premium or penalty, to cancel or
reduce permanently all or a portion of the Commitment, on a pro rata basis among
the Banks, provided, however, that any such -------- ------- partial reduction
shall be made in an amount not less than $5,000,000 and in integral multiples of
not less than $1,000,000. As of the date of cancellation or reduction set forth
in such notice, the Commitment shall be permanently reduced to the amount stated
in the Borrower's notice for all purposes herein, and the Borrower shall pay to
the Administrative Agent for the Banks the amount necessary to reduce the
principal amount of the Loans then outstanding under the Commitment to not more
than the amount of the Commitment as so reduced, together with accrued interest
on the amount so prepaid and commitment fees accrued through the date of the
reduction with respect to the amount reduced. Reductions in the Commitment
pursuant to this Section shall be applied pro rata to the then remaining
reductions set forth in Section 2.5(a).
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Section 2.7 Prepayments and Repayments.
(a) Prepayment. The principal amount of any Base Rate
Advance may be prepaid in full or ratably in part at any time, without penalty
and without regard to the Payment Date for such Advance. LIBOR Advances may be
prepaid prior to the applicable Payment Date, upon three (3) Business Days'
prior written notice to the Administrative Agent, provided that the Borrower
shall reimburse the Banks and the Administrative Agent, on demand by the
applicable Bank or the Administrative Agent, for any loss or reasonable out-of-
pocket expense incurred by any Bank or the Administrative Agent in connection
with such prepayment, as set forth in Section 2.10 hereof. Any prepayment
hereunder shall be in amounts of not less than $500,000 and in integral
multiples of $100,000.
(b) Repayments.
(i) Loans in Excess of Commitment. If, at any time,
the amount of the Loans then outstanding shall exceed the Available
Commitment, the Borrower shall, on such date and subject to Sections
2.10 and 2.11 hereof, make a repayment of the principal amount of the
Loans in an amount equal to such excess, together with any accrued
interest and fees with respect thereto.
(ii) From Excess Cash Flow. On April 15, 2000, and on
each April 15 thereafter during the term of this Agreement, the
Borrower shall make a repayment of the Loans then outstanding in an
amount equal to fifty percent (50%) of the Excess Cash Flow for the
fiscal year immediately preceding the calculation date.
(iii) From Permitted Asset Sales. On the Business Day
following the date of receipt by the Borrower or any of its Restricted
Subsidiaries of the Net Proceeds of any asset sale permitted pursuant
to Section 7.4 hereof (other than with respect to the Philadelphia
Disposition), and to the extent that the Borrower is required to
reduce the Commitment pursuant to Section 2.5(c) hereof, the Borrower
shall make a repayment of the Loans by an amount equal to the amount
of such reduction.
(iv) From Capital Stock and Debt Instruments. On the
Business Day following the receipt by the Borrower of the Net Proceeds
of any sale of its Capital Stock or debt instruments or other
securities, and to the extent that the Borrower is required to reduce
the Commitment pursuant to Section 2.5(d) hereof, the Borrower shall
make a repayment
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of the Loans by an amount equal to the amount of such reduction.
(v) Maturity Date. In addition to the foregoing, a
final payment of all Obligations then outstanding shall be due and
payable on the Maturity Date.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein and shall be evidenced by the Notes. One
Note shall be payable to the order of each Bank, in accordance with such Bank's
respective Commitment Ratio. The Notes shall be issued by the Borrower to the
Banks and shall be duly executed and delivered by one or more Authorized
Signatories.
(b) Each Bank may open and maintain on its books in the
name of the Borrower a loan account with respect to its portion of the Loans and
interest thereon. Each Bank which opens such a loan account shall debit such
loan account for the principal amount of its portion of each Advance made by it
and accrued interest thereon, and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Bank with respect to the loan account maintained by it shall be prima facie
evidence of its portion of the Loans and accrued interest thereon absent
manifest error, but the failure of any Bank to make any such notations or any
error or mistake in such notations shall not affect the Borrower's repayment
obligations with respect to such Loans.
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the Borrower
on account of the principal of or interest on the Loans, commitment fees and any
other amount owed to the Banks or the Administrative Agent or any of them under
this Agreement or the Notes shall be made not later than 1:00 p.m. (New York
time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office, for the account of
the Banks or the Administrative Agent, as the case may be, in lawful money of
the United States of America in immediately available funds. Any payment
received by the Administrative Agent after 1:00 p.m. (New York time) shall be
deemed received on the next Business Day. Receipt by the Administrative Agent of
any payment intended for any Bank or Banks hereunder prior to 1:00 p.m. (New
York time) on any Business Day shall be deemed to constitute receipt by such
Bank or Banks on such Business Day. In the case of a payment for the account of
a Bank, the Administrative Agent will promptly, but no later than the close of
business on the date such payment is
-30-
deemed received, thereafter distribute the amount so received in like funds to
such Bank. If the Administrative Agent shall not have received any payment from
the Borrower as and when due, the Administrative Agent will promptly notify the
Banks accordingly. In the event that the Administrative Agent shall fail to make
distribution to any Bank as required under this Section 2.9, the Administrative
Agent agrees to pay such Bank interest from the date such payment was due until
paid at the Federal Funds Rate.
(b) The Borrower agrees to pay principal, interest, fees
and all other amounts due hereunder or under the Notes without set-off or
counterclaim or any deduction whatsoever.
(c) Prior to the declaration of an Event of Default under
Section 8.2 hereof, if some but less than all amounts due from the Borrower are
received by the Administrative Agent with respect to the Obligations, the
Administrative Agent shall distribute such amounts in the following order of
priority, all on a pro rata basis to the Banks: (i) to the payment on a pro rata
basis of any fees or expenses then due and payable to the Administrative Agent
or the Banks, or any of them; (ii) to the payment of interest then due and
payable on the Loans; (iii) to the payment of all other amounts not otherwise
referred to in this Section 2.9(c) then due and payable to the Administrative
Agent or the Banks, or any of them, hereunder or under the Notes or any other
Loan Document; and (iv) to the payment of principal then due and payable on the
Loans.
(d) Subject to any contrary provisions in the definition of
Interest Period, if any payment under this Agreement or any of the other Loan
Documents is specified to be made on a day which is not a Business Day, it shall
be made on the next Business Day, and such extension of time shall in such case
be included in computing interest and fees, if any, in connection with such
payment.
Section 2.10 Reimbursement.
(a) Whenever any Bank shall sustain or incur any losses or
reasonable out-of-pocket expenses in connection with (i) failure by the Borrower
to borrow any LIBOR Advance after having given notice of its intention to borrow
in accordance with Section 2.2 hereof (whether by reason of the Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3), or (ii) prepayment (or failure to prepay after giving
notice thereof) of any LIBOR Advance in whole or in part for any reason, the
Borrower agrees to pay to such Bank, upon such Bank's demand, an amount
sufficient to compensate such Bank for all such losses and out-of-pocket
expenses. Such Bank's good faith determination of the amount of such losses or
out-of-pocket expenses, as set forth in writing and accompanied
-31-
by calculations in reasonable detail demonstrating the basis for its demand,
shall be presumptively correct absent manifest error.
(b) Losses subject to reimbursement hereunder shall
include, without limiting the generality of the foregoing, lost margins,
expenses incurred by any Bank or any participant of such Bank permitted
hereunder in connection with the re-employment of funds prepaid, paid, repaid,
not borrowed, or not paid, as the case may be, and will be payable whether the
Maturity Date is changed by virtue of an amendment hereto (unless such amendment
expressly waives such payment) or as a result of acceleration of the
Obligations.
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance from the Banks hereunder, shall
be made pro rata on the basis of the respective Commitment Ratios of the Banks.
(b) Payments. Each payment and prepayment of principal of
the Loans, and, except as provided in Section 2.2(e) and Article 10 hereof, each
payment of interest on the Loans, shall be made to the Banks pro rata on the
basis of their respective unpaid principal amounts outstanding under the Notes
immediately prior to such payment or prepayment. If any Bank shall obtain any
payment (whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans in excess of its ratable share of the Loans
under its Commitment Ratio, such Bank shall forthwith purchase from the other
Banks such participations in the portion of the Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery. The Borrower agrees that any
Bank so purchasing a participation from another Bank pursuant to this Section
2.11(b) 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 Bank were the direct creditor of the Borrower in the amount of
such participation.
Section 2.12 Capital Adequacy. If after the date hereof, the
adoption of any Applicable Law regarding the capital adequacy of banks or bank
holding companies, or any change in Applicable Law (whether adopted before or
after the Agreement Date) or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by such Bank
with any directive regarding capital adequacy
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(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on any Bank's capital as a consequence of its obligations
hereunder with respect to the Loans and the Commitment to a level below that
which it could have achieved but for such adoption, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy
immediately before such adoption, change or compliance and assuming that such
Bank's capital was fully utilized prior to such adoption, change or compliance)
by an amount reasonably deemed by such Bank to be material, then, upon demand by
such Bank, the Borrower shall promptly pay to such Bank such additional amounts
as shall be sufficient to compensate such Bank for such reduced return, together
with interest on such amount from the fourth (4th) Business Day after the date
of demand or the Maturity Date, as applicable, until payment in full thereof at
the Default Rate. A certificate of such Bank setting forth the amount to be paid
to such Bank by the Borrower as a result of any event referred to in this
paragraph and supporting calculations in reasonable detail shall be
presumptively correct absent manifest error.
Section 2.13 Bank Tax Forms. On or prior to the Agreement Date and
on or prior to the first Business Day of each calendar year thereafter, each
Bank which is organized in a jurisdiction other than the United States shall
provide each of the Administrative Agent and the Borrower with a properly
executed originals of Forms 4224 or 1001 (or any successor form) prescribed by
the Internal Revenue Service or other documents satisfactory to the Borrower and
the Administrative Agent, and properly executed Internal Revenue Service Forms
W-8 or W-9, as the case may be, certifying (i) as to such Bank's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to such Bank hereunder and under the Notes or
(ii) that all payments to be made to such Bank hereunder and under the Notes are
subject to such taxes at a rate reduced to zero by an applicable tax treaty.
Each such Bank agrees to provide the Administrative Agent and the Borrower with
new forms prescribed by the Internal Revenue Service upon the expiration or
obsolescence of any previously delivered form, or after the occurrence of any
event requiring a change in the most recent forms delivered by it to the
Administrative Agent and the Borrower.
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ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Initial Advance. The obligation
of the Banks to undertake the Commitment and to make the initial Advance
hereunder are subject to the prior or contemporaneous fulfillment of each of the
following conditions:
(a) The Administrative Agent and the Banks shall have
received each of the following:
(i) this Agreement duly executed;
(ii) the loan certificate of the Borrower dated as of
the Agreement Date, in substantially the form attached hereto as
Exhibit K, including a certificate of incumbency with respect to each
Authorized Signatory of such Person, together with the following
items: (A) a true, complete and correct copy of the Certificate of
Incorporation and By-laws of the Borrower as in effect on the
Agreement Date, (B) certificates of good standing for the Borrower
issued by the Secretary of State or similar state official for the
state of incorporation of the Borrower and for each state in which the
Borrower is required to qualify to do business, (C) a true, complete
and correct copy of the corporate resolutions of the Borrower
authorizing the Borrower to execute, deliver and perform this
Agreement and the other Loan Documents, and (D) a true, complete and
correct copy of any shareholders' agreements or voting trust
agreements in effect with respect to the stock of the Borrower;
(iii) duly executed Notes;
(iv) duly executed Security Documents;
(v) copies of insurance binders or certificates
covering the assets of the Borrower and its Restricted Subsidiaries,
and otherwise meeting the requirements of Section 5.5 hereof, together
with copies of the underlying insurance policies;
(vi) legal opinion of Xxxxxxxx & Worcester LLP counsel
to the Borrower; addressed to each Bank and the Administrative Agent
and dated as of the Agreement Date;
(vii) duly executed Certificate of Financial Condition
for the Borrower and its Restricted Subsidiaries on a consolidated and
consolidating basis, given by the chief financial officer of the
Borrower;
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(viii) copies of the most recent quarterly financial
statements of the Borrower and its Restricted Subsidiaries provided to
each Bank and each Administrative Agent, certified by the chief
financial officer of the Borrower;
(ix) all such other documents as the Administrative
Agent may reasonably request, certified by an appropriate governmental
official or an Authorized Signatory if so requested.
(b) The Administrative Agent and the Banks shall have
received evidence satisfactory to them that all Necessary Authorizations,
including all necessary consents to the closing of this Agreement, have been
obtained or made, are in full force and effect and are not subject to any
pending or, to the knowledge of the Borrower, threatened reversal or
cancellation, and the Administrative Agent and the Banks shall have received a
certificate of an Authorized Signatory so stating.
(c) The Borrower shall certify to the Administrative Agent
and the Banks that each of the representations and warranties in Article 4
hereof are true and correct in all material respects as of the Agreement Date
and that no Default or Event of Default then exists or is continuing.
(d) The Administrative Agent shall have received evidence
reasonably satisfactory to it that the Parent or American Radio Systems has
contributed not less than $25,000,000 of equity into the Borrower comprised of
not less than $15,000,000 in cash (or acquisitions of property from non-
Affiliates made with Capital Stock of American Radio Systems) and the balance in
tangible assets (valued at American Radio Systems's cost for such assets).
(e) The Borrower shall have paid to the Administrative
Agent for the account of each Bank the facility fees set forth in those letter
agreements dated the Agreement Date in favor of each Bank.
(f) The Administrative Agent shall have received evidence
reasonably satisfactory to it that no real property owned by the Borrower is
located in a Federal or state designated flood zone or, to the extent that any
such real property is located in a Federal or state designated flood zone,
evidence satisfactory to it that such real property is sufficiently insured
against flood related losses.
Section 3.2 Conditions Precedent to Each Advance. The obligation of
the Banks to make each Advance on or after the Agreement Date is subject to the
fulfillment of each of the
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following conditions immediately prior to or contemporaneously with such
Advance:
(a) All of the representations and warranties of the
Borrower under this Agreement and the other Loan Documents (including, without
limitation, all representations and warranties with respect to the Borrower's
Restricted Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and
as of the time of such Advance, 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 such Advance, and after giving effect to any updates to information
provided to the Banks in accordance with the terms of such representations and
warranties, and no Default hereunder shall then exist or be caused thereby;
(b) With respect to Advances which, if funded, would
increase the aggregate principal amount of Loans outstanding hereunder, the
Administrative Agent shall have received a duly executed Request for Advance;
(c) The Administrative Agent and the Banks shall have
received all such other certificates, reports, statements, opinions of counsel
(if such Advance is in connection with an Acquisition) or other documents as the
Administrative Agent or any Bank may reasonably request;
(d) With respect to any Advance relating to any Acquisition
or the formation of any Subsidiary which is permitted hereunder, the
Administrative Agent and the Banks shall have received such documents and
instruments relating to such Acquisition or formation of a new Restricted
Subsidiary as are described in Section 5.14 hereof or otherwise required herein.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby
agrees, represents and warrants, upon the Agreement Date, in favor of the
Administrative Agent and each Bank that:
(a) Organization; Ownership; Power; Qualification. The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Borrower has the corporate power
and authority to own its properties and to carry on its business as now being
and as proposed hereafter to be conducted. Except as set forth on Schedule
4.1(a) attached hereto, each Restricted Subsidiary of
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the Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and has the corporate
power and authority to own its properties and to carry on its business as now
being and as proposed hereafter to be conducted. The Borrower and each of its
Restricted Subsidiaries are duly qualified, in good standing and authorized to
do business in each jurisdiction in which the character of their respective
properties or the nature of their respective businesses requires such
qualification or authorization, except where failure to be so qualified, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary corporate action to authorize it to
borrow hereunder, to execute, deliver and perform this Agreement and each of the
other Loan Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by the Borrower and is, and each
of the other Loan Documents to which the Borrower is party is, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity.
(c) Subsidiaries: Authorization; Enforceability. The
Borrower's Restricted Subsidiaries and the Borrower's direct and indirect
ownership thereof as of the Agreement Date are as set forth on Schedule 4.1(c)
attached hereto, and to the extent such Restricted Subsidiaries are
corporations, the Borrower has the unrestricted right to vote the issued and
outstanding shares of the Restricted Subsidiaries shown thereon and such shares
of such Restricted Subsidiaries have been duly authorized and issued and are
fully paid and nonassessable. Each Restricted Subsidiary of the Borrower has the
corporate power and has taken all necessary corporate action to authorize it to
execute, deliver and perform each of the Loan Documents to which it is a party
in accordance with their respective terms and to consummate the transactions
contemplated by this Agreement and by such Loan Documents. Each of the Loan
Documents to which any Restricted Subsidiary of the Borrower is party is a
legal, valid and binding obligation of such Restricted Subsidiary enforceable
against such Restricted Subsidiary in accordance with its terms, subject, as
enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity. The Borrower's
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ownership interest in each of its Restricted Subsidiaries represents a direct or
indirect controlling interest of such Restricted Subsidiary for purposes of
directing or causing the direction of the management and policies of each
Restricted Subsidiary.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and the Notes, and by the
Borrower and its Restricted Subsidiaries of each of the other Loan Documents to
which they are respectively party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) require any consent or
approval, governmental or otherwise, not already obtained, (ii) violate any
Applicable Law respecting the Borrower or any Restricted Subsidiary of the
Borrower, (iii) conflict with, result in a breach of, or constitute a default
under the certificate or articles of incorporation or by-laws or partnership
agreements, as the case may be, as amended, of the Borrower or of any Restricted
Subsidiary of the Borrower, or under any material indenture, agreement, or other
instrument, including without limitation the Licenses, to which the Borrower or
any of its Restricted Subsidiaries is a party or by which any of them 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 Borrower or any of its Restricted Subsidiaries, except
for Permitted Liens.
(e) Business. The Borrower, together with its Subsidiaries,
is engaged in the business of owning, constructing, managing, operating, and
investing in communications tower facilities.
(f) Licenses, etc. The Licenses have been duly issued and
are in full force and effect. The Borrower and its Restricted Subsidiaries are
in compliance in all material respects with all of the provisions thereof. The
Borrower and its Restricted Subsidiaries have secured all Necessary
Authorizations and all such Necessary Authorizations are in full force and
effect. Neither any License nor any Necessary Authorization is the subject of
any pending or, to the best of the Borrower's knowledge, threatened revocation.
(g) Compliance with Law. The Borrower and its Restricted
Subsidiaries are in compliance with all Applicable Law, except where the failure
to be in compliance would not individually or in the aggregate have a Material
Adverse Effect.
(h) Title to Assets. As of the Agreement Date, the Borrower
and its Restricted Subsidiaries have good, legal and
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marketable title to, or a valid leasehold interest in, all of its assets. None
of the properties or assets of the Borrower or any of its Restricted
Subsidiaries is subject to any Liens, except for Permitted Liens. Except for
financing statements evidencing Permitted Liens, no financing statement under
the Uniform Commercial Code as in effect in any jurisdiction and no other filing
which names the Borrower or any of its Restricted Subsidiaries as debtor or
which covers or purports to cover any of the assets of the Borrower or any of
its Restricted Subsidiaries is currently effective and on file in any state or
other jurisdiction, and neither the Borrower nor any of its Restricted
Subsidiaries has signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any such financing
statement or filing.
(i) Litigation. As of the date hereof, there is no action,
suit, proceeding or investigation pending against, or, to the knowledge of the
Borrower, threatened against or in any other manner relating adversely to, the
Borrower or any of its Restricted Subsidiaries or any of their respective
properties, including without limitation the Licenses, in any court or before
any arbitrator of any kind or before or by any governmental body (including
without limitation the FCC) except as set forth on Schedule 4.1(i) attached
hereto (as such schedule may be updated from time to time). No such action,
suit, proceeding or investigation (i) calls into question the validity of this
Agreement or any other Loan Document, or (ii) individually or collectively
involves the possibility of any judgment or liability not fully covered by
insurance which, if determined adversely to the Borrower or any of its
Restricted Subsidiaries, would have a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the
Borrower and each of its Restricted Subsidiaries required by law to be filed
have been duly filed and all federal, state and other taxes, including, without
limitation, withholding taxes, assessments and other governmental charges or
levies required to be paid by the Borrower or any of its Restricted Subsidiaries
or imposed upon the Borrower or any of its Restricted Subsidiaries or any of
their respective properties, income, profits or assets, which are due and
payable, have been paid, except any such taxes (i) (x) the payment of which the
Borrower or any of its Restricted Subsidiaries is diligently contesting in good
faith by appropriate proceedings, (y) for which adequate reserves have been
provided on the books of the Borrower or the Restricted Subsidiary of the
Borrower involved, and (z) as to which no Lien other than a Permitted Lien has
attached and no foreclosure, distraint, sale or similar proceedings have been
commenced, or (ii) which may result from audits not yet conducted. The charges,
accruals and reserves on the books of the Borrower and each of its Restricted
Subsidiaries
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in respect of taxes are, in the judgment of the Borrower, adequate.
(k) Financial Statements. The Borrower has furnished or
caused to be furnished to the Administrative Agent and the Banks as of the
Agreement Date, the audited financial statements for American Radio Systems and
its Subsidiaries on a consolidated basis for the fiscal year ended December 31,
1995, and unaudited financial statements for the Borrower and its Restricted
Subsidiaries for the fiscal quarter ended June 30, 1996, all of which have been
prepared in accordance with GAAP and present fairly in all material respects the
financial position of the Borrower and its Restricted Subsidiaries on a
consolidated basis, on and as at such dates and the results of operations for
the periods then ended (subject, in the case of unaudited financial statements,
to normal year-end and audit adjustments). Neither the Borrower nor any of its
Restricted Subsidiaries has any material liabilities, contingent or otherwise,
other than as disclosed in the financial statements referred to in the preceding
sentence or as set forth or referred to in this Agreement.
(l) No Material Adverse Change. There has occurred no event
since June 30, 1996 which has or which could reasonably be expected to have a
Materially Adverse Effect.
(m) ERISA. The Borrower and each Subsidiary of the Borrower
and each of their respective Plans are in compliance with ERISA and the Code and
neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any accumulated funding deficiency with respect to
any such Plan within the meaning of ERISA or the Code. The Borrower, each of its
Subsidiaries, and each other ERISA Affiliate have complied in all material
respects with all requirements of COBRA. Neither the Borrower nor any of its
Subsidiaries has made any promises of retirement or other benefits to employees,
except as set forth in the Plans, in written agreements with such employees, or
in the Borrower's employee handbook and memoranda to employees. Neither the
Borrower nor any of its ERISA Affiliates, including its Subsidiaries, has
incurred any material liability to PBGC in connection with any such Plan. The
assets of each such Plan which is subject to Title IV of ERISA are sufficient to
provide the benefits under such Plan, the payment of which PBGC would guarantee
if such Plan were terminated, and such assets are also sufficient to provide all
other "benefit liabilities" (within the meaning of Section 4041 of ERISA) due
under the Plan upon termination. No Reportable Event has occurred and is
continuing with respect to any such Plan. No such Plan or trust created
thereunder, or party in interest (as defined in Section 3(14) of ERISA), or any
fiduciary (as defined in Section 3(21) of ERISA), has engaged in a "prohibited
transaction" (as such term is
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defined in Section 406 of ERISA or Section 4975 of the Code) which would subject
such Plan or any other Plan of the Borrower or any of its Subsidiaries, any
trust created thereunder, or any such party in interest or fiduciary, or any
party dealing with any such Plan or any such trust, to the tax or penalty on
"prohibited transactions" imposed by Section 502 of ERISA or Section 4975 of the
Code. Neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, is or has been obligated to make any payment to a Multiemployer
Plan.
(n) Compliance with Regulations G, T, U and X. Neither the
Borrower nor any of the Borrower's Restricted Subsidiaries is engaged
principally or as one of its important activities in the business of extending
credit for the purpose of purchasing or carrying, and neither the Borrower nor
any of the Borrower's Restricted Subsidiaries owns or presently intends to
acquire, any "margin security" or "margin stock" as defined in Regulations G, T,
U, and X (12 C.F.R. Parts 207, 220, 221 and 224) of the Board of Governors of
the Federal Reserve System (herein called "margin stock"). None of the proceeds
of the Loans will be used, directly or indirectly, for the purpose of purchasing
or carrying any margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin stock or
for any other purpose which might constitute this transaction a "purpose credit"
within the meaning of said Regulations G, T, U, and X. The Borrower has not
taken, caused or authorized to be taken, and will not take any action which
might cause this Agreement or the Notes to violate Regulation G, T, U, or X or
any other regulation of the Board of Governors of the Federal Reserve System or
to violate the Securities Exchange Act of 1934, in each case as now in effect or
as the same may hereafter be in effect. If so requested by the Administrative
Agent, the Borrower will furnish the Administrative Agent with (i) a statement
or statements in conformity with the requirements of Federal Reserve Forms G-3
and/or U-1 referred to in Regulations G and U of said Board of Governors and
(ii) other documents evidencing its compliance with the margin regulations,
reasonably requested by the Administrative Agent. Neither the making of the
Loans nor the use of proceeds thereof will violate, or be inconsistent with, the
provisions of Regulation G, T, U, or X of said Board of Governors.
(o) Investment Company Act. Neither the Borrower nor any of
its Restricted Subsidiaries is required to register under the provisions of the
Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Borrower and its Restricted Subsidiaries of this Agreement
and the Loan Documents 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
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any other governmental or public body or authority pursuant to any provisions of
such Act.
(p) Governmental Regulation. Neither the Borrower nor any
of its Restricted Subsidiaries is required to obtain any consent, approval,
authorization, permit or license which has not already been obtained from, or
effect any filing or registration which has not already been effected with, any
federal, state or local regulatory authority in connection with the execution
and delivery of this Agreement or any other Loan Document. Neither the Borrower
nor any of its Restricted Subsidiaries is required to obtain any consent,
approval, authorization, permit or license which has not already been obtained
from, or effect any filing or registration which has not already been effected
with, any federal, state or local regulatory authority in connection with the
performance, in accordance with their respective terms, of this Agreement or any
other Loan Document, other than filing of appropriate UCC financing statements
and mortgages.
(q) Absence of Default, Etc. The Borrower and its
Restricted Subsidiaries are in compliance in all respects with all of the
provisions of their respective partnership agreements, Certificates or Articles
of Incorporation and By-Laws, as the case may be, and no event has occurred or
failed to occur (including, without limitation, any matter which could create a
Default hereunder by cross-default) which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, (i) a Default or (ii) a
material default by the Borrower or any of its Restricted Subsidiaries under any
indenture, agreement or other instrument relating to Indebtedness of the
Borrower or any of its Restricted Subsidiaries in the amount of $1,000,000 or
more in the aggregate, any material License, or any judgment, decree or order to
which the Borrower or any of its Restricted Subsidiaries is a party or by which
the Borrower or any of its Restricted Subsidiaries or any of their respective
properties may be bound or affected.
(r) Accuracy and Completeness of Information. All
information, reports, prospectuses and other papers and data relating to the
Borrower or any of its Restricted Subsidiaries and furnished by or on behalf of
the Borrower or any of its Restricted Subsidiaries to the Administrative Agent
or the Banks, taken as a whole, were, at the time furnished, true, complete and
correct in all material respects to the extent necessary to give the
Administrative Agent and the Banks true and accurate knowledge of the subject
matter, and all projections, consisting of a consolidated projected cash flow
statement, an income statement, and a balance sheet for Borrower and its
Restricted Subsidiaries (the "Projections") (i) disclose all assumptions made
with respect to costs, general economic conditions, and financial and market
conditions formulating the Projections; (ii)
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are based on reasonable estimates and assumptions; and (iii) reflect, as of the
date prepared, and continue to reflect, as of the date hereof, the reasonable
estimate of Borrower of the results of operations and other information
projected therein for the periods covered thereby.
(s) Agreements with Affiliates. Except for agreements or
arrangements with Affiliates wherein the Borrower or one or more of its
Restricted Subsidiaries provides services to such Affiliates for fair
consideration or which are set forth on Schedule 4.1(s) attached hereto, neither
the Borrower nor any of its Restricted Subsidiaries has (i) any written
agreements or binding arrangements of any kind with any Affiliate or (ii) any
management or consulting agreements of any kind with any Affiliate, other than
those between the Borrower and its Restricted Subsidiaries.
(t) Payment of Wages. The Borrower and each of its
Restricted Subsidiaries are in compliance with the Fair Labor Standards Act, as
amended, in all material respects, and to the knowledge of the Borrower and each
of its Subsidiaries, such Persons have paid all minimum and overtime wages
required by law to be paid to their respective employees.
(u) Priority. The Security Interest is a valid and, upon
filing of appropriate UCC financing statements and/or mortgages, will be a
perfected first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Banks, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens. The Liens created
by the Security Documents are enforceable as security for the Obligations in
accordance with their terms with respect to the Collateral subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate remedy
at law, and (ii) enforcement may be limited by 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 Borrower or any of its
Subsidiaries, as the case may be).
(v) Indebtedness. Except as shown on the financial
statements of Borrower for the fiscal quarter ended June 30, 1996, or as
described on Schedule 4.1(v) attached hereto neither the Borrower nor any of its
Restricted Subsidiaries has outstanding, as of the Agreement Date, and after
giving effect to the initial Advances hereunder on the Agreement Date, any
Indebtedness for Money Borrowed.
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(w) Solvency. As of the Agreement Date and after giving
effect to the transactions contemplated by the Loan Documents (i) the property
of the Borrower, at a fair valuation, will exceed its debt; (ii) the capital of
the Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature; and (iv) the present fair salable
value of the assets of the Borrower will be greater than the amount that will be
required to pay its probable liabilities (including debts) as they become
absolute and matured. For purposes of this Section, "debt" means any liability
on a claim, and "claim" means (i) the right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date of each
Advance except to the extent relating specifically to the Agreement Date. All
representations and warranties made under this Agreement and the other Loan
Documents shall survive, and not be waived by, the execution hereof by the Banks
and the Administrative Agent, any investigation or inquiry by any Bank or the
Administrative Agent, or the making of any Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority
Banks, or such greater number of Banks as may be expressly provided herein,
shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Except
as permitted under Section 7.4 hereof, the Borrower will, and will cause each of
its Restricted Subsidiaries to:
(i) preserve and maintain its existence, and its material
rights, franchises, licenses and privileges in the
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state of its incorporation, including, without limiting the foregoing,
the Licenses and all other Necessary Authorizations; and
(ii) 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 for such failure to so qualify and be so
authorized as could not reasonably be expected to have a Material
Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrower
will, and will cause each of its Restricted Subsidiaries to, (a) engage in the
business of owning, constructing, managing, operating and investing in
communications tower facilities and related businesses and no unrelated
activities, and (b) comply in all material respects with the requirements of all
Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will, and will
cause each of its Restricted Subsidiaries to, maintain or cause to be maintained
in the ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than obsolete equipment or
unused assets and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower
will, and will cause each of its Restricted Subsidiaries on a consolidated and
consolidating basis 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 in accordance with GAAP and reflecting
all transactions required to be reflected by GAAP and keep accurate and complete
records of their respective properties and assets. The Borrower and its
Restricted Subsidiaries will maintain a fiscal year ending on December 31.
Section 5.5 Insurance. The Borrower will, and will cause each of
its Restricted Subsidiaries to:
(a) Maintain insurance including, but not limited to,
business interruption coverage and public liability coverage insurance from
responsible companies in such amounts and against such risks to the Borrower and
each of its Restricted Subsidiaries as is prudent for similarly situated
companies engaged in the communications tower industry.
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(b) Keep their respective assets insured by insurers on
terms and in a manner reasonably acceptable to the Administrative Agent against
loss or damage by fire, theft, burglary, loss in transit, explosions and hazards
insured against by extended coverage, in amounts which are prudent for the
communications tower management and operation industry and reasonably
satisfactory to the Administrative Agent, all premiums thereon to be paid by the
Borrower and its Restricted Subsidiaries.
(c) Require that each insurance policy provide for at least
thirty (30) days' prior written notice to the Administrative Agent of any
termination of or proposed cancellation or nonrenewal of such policy, and name
the Administrative Agent as additional named lender loss payee and, as
appropriate, additional insured, to the extent of the Obligations.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and
will cause each of its Restricted Subsidiaries to, pay and discharge all taxes,
including, without limitation, withholding taxes, assessments and governmental
charges or levies required to be paid by them or imposed upon them or their
income or profits or upon any properties belonging to them, prior to the date on
which penalties attach thereto, and all lawful claims for labor, materials and
supplies which, if unpaid, might become a Lien or charge upon any of their
properties; except that no such tax, assessment, charge, levy or claim need be
paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy or
claim does not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale or similar proceedings shall have been commenced.
The Borrower will, and will cause each of its Restricted Subsidiaries to, timely
file all information returns required by federal, state or local tax
authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrower shall, and shall cause its Subsidiaries
to, make all contributions to any Employee Pension Plan when such contributions
are due and not incur any "accumulated funding deficiency" within the meaning of
Section 412(a) of the Code, whether or not waived, and will otherwise comply
with the requirements of the Code and ERISA with respect to the operation of all
Plans, except to the extent that the failure to so comply could not have a
Materially Adverse Effect.
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(b) The Borrower shall, and shall cause its Subsidiaries
to, comply in all respects with the requirements of COBRA with respect to any
Plans subject to the requirements thereof, except to the extent that the failure
to so comply could not have a Materially Adverse Effect.
(c) The Borrower shall furnish to Administrative Agent (i)
within 30 days after any officer of the Borrower obtains knowledge that a
"prohibited transaction" (within the meaning of Section 406 of ERISA or Section
4975 of the Code) has occurred with respect to any Plan of the Borrower or its
ERISA Affiliates, including its Subsidiaries, that any Reportable Event has
occurred with respect to any Employee Pension Plan or that PBGC has instituted
or will institute proceedings under Title IV of ERISA to terminate any Employee
Pension Plan or to appoint a trustee to administer any Employee Pension Plan, a
statement setting forth the details as to such prohibited transaction,
Reportable Event or termination or appointment proceedings and the action which
it (or any other Employee Pension Plan sponsor if other than the Borrower)
proposes to take with respect thereto, together with a copy of the notice of
such Reportable Event given to PBGC if a copy of such notice is available to the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates, (ii) promptly
after receipt thereof, a copy of any notice the Borrower, any of its
Subsidiaries or any of its ERISA Affiliates or the sponsor of any Plan receives
from PBGC, or the Internal Revenue Service or the Department of Labor which sets
forth or proposes any action or determination with respect to such Plan, (iii)
promptly after the filing thereof, any annual report required to be filed
pursuant to ERISA in connection with each Plan maintained by the Borrower or any
of its ERISA Affiliates, including the Subsidiaries, and (iv) promptly upon the
Administrative Agent's request therefor, such additional information concerning
any such Plan as may be reasonably requested by the Administrative Agent.
(d) The Borrower will promptly notify the Administrative
Agent of any excise taxes which have been assessed or which the Borrower, any of
its Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries.
(e) Within the time required for notice to the PBGC under
Section 302(f)(4)(A) of ERISA, the Borrower will notify the Administrative Agent
of any lien arising under Section 302(f) of ERISA in favor of any Plan of the
Borrower or its ERISA Affiliates, including its Subsidiaries.
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(f) The Borrower will not, and will not permit any of its
Subsidiaries or any of its ERISA Affiliates to take any of the following actions
or permit any of the following events to occur if such action or event together
with all other such actions or events would subject the Borrower, any of its
Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or other
liabilities which could have a Materially Adverse Effect:
(i) engage in any transaction in connection with
which the Borrower, any of its Subsidiaries or any ERISA Affiliate
could be subject to either a civil penalty assessed pursuant to
Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code;
(ii) terminate any Employee Pension Plan in a manner,
or take any other action, which could result in any liability of the
Borrower, any of its Subsidiaries or any ERISA Affiliate to the PBGC;
(iii) fail to make full payment when due of all amounts
which, under the provisions of any Plan, the Borrower, any of its
Subsidiaries or any ERISA Affiliate is required to pay as
contributions thereto, or permit to exist any accumulated funding
deficiency within the meaning of Section 412(a) of the Code, whether
or not waived, with respect to any Employee Pension Plan; or
(iv) permit the present value of all benefit
liabilities under all Employee Pension Plans which are subject to
Title IV of ERISA to exceed the present value of the assets of such
Plans allocable to such benefit liabilities (within the meaning of
Section 4041 of ERISA), except as may be permitted under actuarial
funding standards adopted in accordance with Section 412 of the Code.
Section 5.8 Visits and Inspections. The Borrower will, and will
cause each of its Restricted Subsidiaries to, permit representatives of the
Administrative Agent and any of the Banks, upon reasonable notice, to (i) visit
and inspect the properties of the Borrower or any of its Restricted Subsidiaries
during business hours, (ii) inspect and make extracts from and copies of their
respective books and records, and (iii) discuss with their respective principal
officers their respective businesses, assets, liabilities, financial positions,
results of operations and business prospects. The Borrower and each of its
Restricted Subsidiaries will also permit representatives of the Administrative
Agent and any of the Banks to discuss with their respective accountants the
Borrower's and the Borrower's Restricted Subsidiaries' businesses, assets,
liabilities,
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financial positions, results of operations and business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any
provisions herein or in any other Loan Document, the Borrower will, and will
cause each of its Restricted Subsidiaries to, pay any and all of their
respective Indebtedness when and as it becomes due, other than amounts
diligently disputed in good faith and for which adequate reserves have been set
aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances under the Loans directly or indirectly:
(a) to fund Acquisitions permitted by Section 7.6 hereof;
(b) to fund Capital Expenditures to the extent permitted
under Section 7.11 hereof; and
(c) for working capital needs and other corporate purposes
of the Borrower and its Restricted Subsidiaries (including, without limitation,
the fees and expenses incurred in connection with the execution and delivery of
this Agreement) which do not otherwise conflict with this Section 5.10.
No proceeds of Advances hereunder shall be used for the purchase or carrying or
the extension of 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.
Section 5.11 Real Estate. The Borrower shall, and shall cause its
Restricted Subsidiaries to, on the Agreement Date, and, thereafter, within
thirty (30) days of the acquisition of any real estate permitted under Section
7.13 hereof, grant a mortgage to the Administrative Agent securing the
Obligations (or such amount thereof as is equal to the fair market value of such
real estate if the Majority Banks so permit), in form and substance reasonably
satisfactory to the Administrative Agent, covering any parcel of real estate as
may be owned by the Borrower or any of its Restricted Subsidiaries; provided,
that (a) this Section 5.11 shall not apply to the Philadelphia Disposition and
(b) any real estate so acquired that is incidental to such Acquisition or is
otherwise incidental to or not useful in the business of Borrower or such
Restricted Subsidiary, Borrower may notify the Administrative Agent in writing
that it or such Restricted Subsidiary intends to, subject to Section 2.5(c)
hereof, sell such real estate within eight (8) months of the date of the
acquisition thereof, in which case, the mortgage required to be
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granted pursuant to this Section 5.11 need not be granted, but if such real
estate is not sold in such eight (8) month period, Borrower or such Restricted
Subsidiary shall, on the first Business Day following the end of such eight (8)
month period, grant a mortgage with respect to such real estate to the
Administrative Agent as required and in accordance with this Section 5.11. The
Borrower shall, and shall cause its Restricted Subsidiaries to, deliver to the
Administrative Agent all documentation, including opinions of counsel and
policies of title insurance, which in the reasonable opinion of the
Administrative Agent are appropriate with each such grant, including any phase I
environmental audit requested by the Majority Banks.
Section 5.12 Indemnity. The Borrower agrees to indemnify and hold
harmless each Bank, the Administrative Agent, and each of their respective
affiliates, employees, representatives, shareholders, officers and directors
(any of the foregoing shall be an "Indemnitee") from and against any and all
claims, liabilities, losses, damages, actions, reasonable attorneys' fees and
expenses (as such fees and expenses are incurred) and demands by any party,
including the costs of investigating and defending such claims, whether or not
the Borrower, any Restricted Subsidiary or the Person seeking indemnification is
the prevailing party (a) resulting from any breach or alleged breach by the
Borrower or any Restricted Subsidiary of the Borrower of any representation or
warranty made hereunder; or (b) otherwise arising out of (i) the Commitment or
otherwise under this Agreement, any Loan Document or any transaction
contemplated hereby or thereby, including, without limitation, the use of the
proceeds of Loans hereunder in any fashion by the Borrower or the performance of
their respective obligations under the Loan Documents by the Borrower or any of
its Restricted Subsidiaries, (ii) allegations of any participation by the Banks,
the Administrative Agent, or any of them, in the affairs of the Borrower or any
of its Subsidiaries, or allegations that any of them has any joint liability
with the Borrower or any of its Restricted Subsidiaries for any reason, (iii)
any claims against the Banks, the Administrative Agent, or any of them, by any
shareholder or other investor in or lender to the Borrower or any Restricted
Subsidiary, by any brokers or finders or investment advisers or investment
bankers retained by the Borrower or by any other third party, arising out of the
Commitment or otherwise under this Agreement; or (c) in connection with taxes
(not including federal or state income or franchise taxes or other taxes based
solely upon the revenues or income of such Persons), fees, and other charges
payable in connection with the Loans, or the execution, delivery, and
enforcement of this Agreement, the Security Documents, the other Loan Documents,
and any amendments thereto or waivers of any of the provisions thereof; unless
the Person seeking indemnification hereunder is determined in such
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case to have acted with gross negligence or willful misconduct, in any case, by
a final, non-appealable judicial order. The obligations of the Borrower under
this Section 5.12 are in addition to, and shall not otherwise limit, any
liabilities which the Borrower might otherwise have in connection with any
warranties or similar obligations of the Borrower in any other Loan Document.
Section 5.13 Interest Rate Hedging. Within sixty (60) days of the
Agreement Date and forty-five (45) days after each Advance, the Borrower shall
enter into (and shall at all times thereafter maintain for a period of not less
than two (2) years) one or more Interest Hedge Agreements with respect to the
Borrower's interest obligations on not less than fifty percent (50%) of the
principal amount of the Loans outstanding from time to time. Such Interest Hedge
Agreements shall provide interest rate protection in conformity with
International Swap Dealers Association standards and for an average period of at
least two (2) years from the date of such Interest Hedge Agreements or, if
earlier, until the Maturity Date on terms reasonably acceptable to the
Administrative Agent, such terms to include consideration of the
creditworthiness of the other party to the proposed Interest Hedge Agreement.
All Obligations of the Borrower to either Administrative Agent or any of the
Banks pursuant to any Interest Hedge Agreement and all Liens granted to secure
such Obligations shall rank pari passu with all other Obligations and Liens
securing such other Obligations; and any Interest Hedge Agreement between the
Borrower and any other Person shall be unsecured.
Section 5.14 Covenants Regarding Formation of Restricted
Subsidiaries and Acquisitions; Partnership, Subsidiaries. At the time of (i) any
Acquisition permitted hereunder, (ii) the purchase by the Borrower or any of its
Restricted Subsidiaries of any interests in any Restricted or Unrestricted
Subsidiary of the Borrower, or (iii) the formation of any new Restricted or
Unrestricted Subsidiary of the Borrower or any of its Restricted Subsidiaries
which is permitted under this Agreement, the Borrower will, and will cause its
Restricted Subsidiaries, as appropriate, to (a) provide to the Administrative
Agent an executed Subsidiary Security Agreement for any new Restricted
Subsidiary, in substantially the form of Exhibit I attached hereto, together
with appropriate UCC-1 financing statements, as well as an executed Subsidiary
Guaranty for such new Restricted Subsidiary, in substantially the form of
Exhibit G attached hereto, which shall constitute both Security Documents and
Loan Documents for purposes of this Agreement, as well as a loan certificate for
such new Restricted Subsidiary, substantially in the form of Exhibit L attached
hereto, together with appropriate attachments; (b) pledge to the Administrative
Agent all of the stock or partnership interests (or other instruments or
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securities evidencing ownership) of such Subsidiary or Person which is acquired
or formed, beneficially owned by the Borrower or any of the Borrower's
Restricted Subsidiaries, as the case may be, as additional Collateral for the
Obligations to be held by the Administrative Agent in accordance with the terms
of the Borrower's Pledge Agreement, or a new Subsidiary Pledge Agreement in
substantially the form of Exhibit H attached hereto, and execute and deliver to
the Administrative Agent all such documentation for such pledge as, in the
reasonable opinion of the Administrative Agent, is appropriate; and (c) with
respect to any Acquisition or Restricted Subsidiary, provide revised financial
projections for the remainder of the fiscal year and for each subsequent year
until the Maturity Date which reflect such Acquisition or formation, certified
by the Chief Financial Officer of the Borrower, together with a statement by
such Person that no Default exists or would be caused by such Acquisition or
formation, and all other documentation, including one or more opinions of
counsel, reasonably satisfactory to the Administrative Agent which in their
reasonable opinion is appropriate with respect to such Acquisition or the
formation of such Subsidiary. Notwithstanding the foregoing, the Borrower shall
not be required to pledge any of the stock or other ownership interests for any
Unrestricted Subsidiary which (x) was not formed or created in anticipation of
the Borrower's direct or indirect investment therein and (y) at the time such
stock or ownership interest was acquired by the Borrower or its Restricted
Subsidiaries is subject to a restriction on any such Lien (whether such
restriction is in such Person's formation documents or otherwise), but shall be
required to grant the Administrative Agent (for the benefit of the Banks) a Lien
upon any right to receive distributions from such Unrestricted Subsidiary. Any
document, agreement or instrument (other than the Projections) executed or
issued pursuant to this Section 5.14 shall be a "Loan Document" for purposes of
this Agreement.
Section 5.15 Payment of Wages. The Borrower shall and shall cause
each of its Restricted Subsidiaries to at all times comply, in all material
respects, with the material requirements of the Fair Labor Standards Act, as
amended, including, without limitation, the provisions of such Act relating to
the payment of minimum and overtime wages as the same may become due from time
to time.
Section 5.16 Further Assurances. The Borrower will promptly cure, or
cause to be cured, defects in the creation and issuance of any of the Notes and
the execution and delivery of the Loan Documents (including this Agreement),
resulting from any acts or failure to act by the Borrower or any of the
Borrower's Restricted Subsidiaries or any employee or officer thereof. The
Borrower at its expense will promptly execute and deliver to the Administrative
Agent and the Banks, or cause to be executed and
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delivered to the Administrative Agent and the Banks, all such other and further
documents, agreements, and instruments in compliance with or accomplishment of
the covenants and agreements of the Borrower in the Loan Documents, including
this Agreement, or to correct any omissions in the Loan Documents, or more fully
to state the obligations set out herein or in any of the Loan Documents, or to
obtain any consents, all as may be necessary or appropriate in connection
therewith and as may be reasonably requested.
ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Banks shall otherwise consent in writing, the Borrower will furnish or cause to
be furnished to each Bank and the Administrative Agent, at their respective
offices:
Section 6.1 Quarterly Financial Statements and Information. Within
forty-five (45) days after the last day of each of the first three (3) quarters
of each fiscal year of the Borrower, the balance sheets of the Borrower on a
consolidated basis with its Restricted Subsidiaries and a consolidating basis
with its Unrestricted Subsidiaries as at the end of such quarter and as of the
end of the preceding fiscal year, and the related statements of operations and
the related statements of cash flows of the Borrower on a consolidated basis
with its Restricted Subsidiaries and a consolidating basis with its Unrestricted
Subsidiaries for such quarter and for the elapsed portion of the year ended with
the last day of such quarter, which shall set forth in comparative form such
figures as at the end of and for such quarter and appropriate prior period and
shall be certified by the chief financial officer of the Borrower to have been
prepared in accordance with GAAP and to present fairly in all material respects
the financial position of the Borrower on a consolidated basis with its
Restricted Subsidiaries and a consolidating basis with its Unrestricted
Subsidiaries as at the end of such period and the results of operations for such
period, and for the elapsed portion of the year ended with the last day of such
period, subject only to normal year-end and audit adjustments.
Section 6.2 Annual Financial Statements and Information. Within
ninety (90) days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet of the Borrower and its Restricted Subsidiaries (and
unaudited consolidating
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balance sheet of the Borrower and its Unrestricted Subsidiaries) as of the end
of such fiscal year and the related audited consolidated and unaudited
consolidating statements of operations for such fiscal year and for the previous
fiscal year, the related audited consolidated statements of cash flow and
stockholders' equity for such fiscal year and for the previous fiscal year,
which shall be accompanied by an opinion which shall be in scope and substance
reasonably satisfactory to the Administrative Agent of Deloitte & Touche, LLP or
other independent certified public accountants of recognized national standing
reasonably acceptable to the Administrative Agent, together with a statement of
such accountants that in connection with their audit, nothing came to their
attention that caused them to believe that the Borrower was not in compliance
with the terms, covenants, provisions or conditions of Sections 7.8, 7.9, 7.10
and 7.11 hereof insofar as they relate to accounting matters.
Section 6.3 Performance Certificates. At the time the financial
statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of the
president or chief financial officer of the Borrower as to its financial
performance, in substantially the form attached hereto as Exhibit M:
(a) setting forth as and at the end of such quarterly period
or fiscal year, as the case may be, the arithmetical calculations required to
establish (i) any adjustment to the Applicable Margins, as provided for in
Section 2.3(f), and (ii) whether or not the Borrower was in compliance with the
requirements of Sections 7.7, 7.8, 7.9, 7.10 and 7.11;
(b) stating that, to the best of his or her knowledge, no
Default has occurred as at the end of such quarterly period or year, as the case
may be, or, if a Default has occurred, disclosing each such Default and its
nature, when it occurred, whether it is continuing and the steps being taken by
the Borrower with respect to such Default; and
(c) containing a list of all Acquisitions, Investments,
Restricted Payments and dispositions of assets from the Agreement Date through
the date of such certificate, together with the total amount for each of the
foregoing categories.
Section 6.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if
any, submitted to the Borrower by the Borrower's independent public accountants
regarding the Borrower, including, without limitation, any management report
prepared in connection with the annual audit referred to in Section 6.2.
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(b) Promptly upon receipt thereof, copies of any material
adverse notice or report regarding any License from the FCC.
(c) From time to time and promptly upon each request, such
data, certificates, reports, statements, documents or further information
regarding the business, assets, liabilities, financial position, projections,
results of operations or business prospects of the Borrower or any of its
Restricted Subsidiaries, as Administrative Agent or any Bank may reasonably
request.
(d) Annually, certificates of insurance indicating that the
requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with copies of any new or replacement insurance policies obtained
during such year.
(e) Prior to January 31 of each year, the annual budget for
the Borrower and the Borrower's Restricted Subsidiaries, including forecasts of
the income statement, the balance sheet and a cash flow statement for such year,
on a quarter by quarter basis.
(f) Promptly after the sending thereof, copies of all
statements, reports and other information which the Borrower or any of its
Restricted Subsidiaries sends to public security holders of the Borrower
generally or files with the Securities and Exchange Commission or any national
securities exchange.
Section 6.5 Notice of Litigation and Other Matters. Notice specifying
the nature and status of any of the following events, promptly, but in any event
not later than fifteen (15) days after the occurrence of any of the following
events becomes known to the Borrower:
(i) the commencement of all proceedings and
investigations by or before any governmental body and all actions and
proceedings in any court or before any arbitrator against the Borrower
or any Restricted Subsidiary, or, to the extent known to the Borrower,
which could have a Material Adverse Effect;
(ii) any material adverse change with respect to the
business, assets, liabilities, financial position, results of
operations or business prospects of the Borrower and its Restricted
Subsidiaries, taken as a whole, other than changes in the ordinary
course of business which have not had and would not reasonably be
expected to have a Materially Adverse Effect and other than changes in
the industry in which Borrower or any of its Restricted
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Subsidiaries operate which would not reasonably be expected to have a
Adverse Effect;
(iii) any material adverse amendment or change to the
projections or annual budget provided to the Banks by the Borrower;
(iv) any Default or the occurrence or non-occurrence of
any event (A) which constitutes, or which with the passage of time or
giving of notice or both would constitute a default by the Borrower or
any Restricted Subsidiary of the Borrower under any material agreement
other than this Agreement and the other Loan Documents to which the
Borrower or any Restricted Subsidiary of the Borrower is party or by
which any of their respective properties may be bound, or (B) which
could have a Materially Adverse Effect, giving in each case a
description thereof and specifying the action proposed to be taken with
respect thereto;
(v) the occurrence of any Reportable Event or a
"prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) with respect to any Plan of the
Borrower or any of its Subsidiaries or the institution or threatened
institution by PBGC of proceedings under ERISA to terminate or to
partially terminate any such Plan or the commencement or threatened
commencement of any litigation regarding any such Plan or naming it or
the trustee of any such Plan with respect to such Plan or any action
taken by the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate of the Borrower to withdraw or partially withdraw from any
Plan or to terminate any Plan; and
(vi) the occurrence of any event subsequent to the
Agreement Date which, if such event had occurred prior to the Agreement
Date, would have constituted an exception to the representation and
warranty in Section 4.1(m) of this Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Banks, or such greater number
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of Banks as may be expressly provided herein, shall otherwise give their prior
consent in writing:
Section 7.1 Indebtedness of the Borrower and its Subsidiaries. The
Borrower shall not, and shall not permit any of its Subsidiaries to, create,
assume, incur or otherwise become or remain obligated in respect of, or permit
to be outstanding, any Indebtedness except:
(a) the Obligations;
(b) accounts payable, accrued expenses (including taxes) and
customer advance payments incurred in the ordinary course of business;
(c) Indebtedness secured by Permitted Liens;
(d) obligations under Interest Hedge Agreements with respect
to the Loans;
(e) Indebtedness of the Borrower or any of its Restricted
Subsidiaries to the Borrower or any other Restricted Subsidiary so long as the
corresponding debt instruments are pledged to the Administrative Agent as
security for the Obligations and such Indebtedness is expressly permitted
pursuant to Section 7.5 hereof;
(f) Indebtedness incurred by any Unrestricted Subsidiary;
provided that such Indebtedness is non-recourse to the Borrower or any of its
Restricted Subsidiaries and no Lien is placed on the Borrower's or any of its
Restricted Subsidiaries' equity interests in such Unrestricted Subsidiary; and
(g) Capitalized Lease Obligations not to exceed in the
aggregate at any one time outstanding $1,000,000.
Section 7.2 Limitation on Liens. The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its properties or assets, whether now owned or
hereafter acquired, except for Permitted Liens.
Section 7.3 Amendment and Waiver. The Borrower shall not, and shall
not permit any of its Restricted Subsidiaries to, enter into any amendment of,
or agree to or accept or consent to any waiver of any of the material provisions
of its articles or certificate of incorporation or partnership agreement, as
appropriate, if the effect thereof would be to adversely affect the rights of
the Banks hereunder or under any Loan Document.
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Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and shall
not permit any of its Restricted Subsidiaries to, at any time sell, lease,
abandon, or otherwise dispose of any assets (other than assets disposed of in
the ordinary course of business and other than the Philadelphia Disposition)
without the prior written consent of the Banks; provided, however, that the
prior written consent of the Banks shall not be required for (i) the transfer of
assets (including cash or cash equivalents) among the Borrower and its
Restricted Subsidiaries (excluding Subsidiaries described in clause (b) of the
definition of "Subsidiary") or for the transfer of assets (including cash or
cash equivalents) between or among Restricted Subsidiaries (excluding
Subsidiaries described in clause (b) of the definition of "Subsidiary") of the
Borrower, (ii) the disposition of communications tower facilities that
contribute in the aggregate, less than (A) five percent (5%) of the Operating
Cash Flow of Borrower for the twelve calendar month period immediately preceding
such disposition, and (B) fifteen percent (15%) of the Operating Cash Flow of
the Borrower for the period from the Agreement Date through the date of such
disposition or (iii) subject to Section 2.5(c) hereof, any other property (real
or personal) not used or useful in Borrower's or such Restricted Subsidiary's
business. Upon any sale or disposition of a Restricted Subsidiary permitted
hereunder, the Administrative Agent and the Banks shall, at Borrower's expense,
take such actions as the Borrower reasonably requests to cause such Restricted
Subsidiary to be released from its obligations under the Subsidiary Guaranty.
(b) Liquidation or Merger. The Borrower shall not, and shall
not permit any of its Restricted Subsidiaries to, at any time liquidate or
dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up,
or enter into any merger, other than (i) a merger or consolidation among the
Borrower and one or more Restricted Subsidiaries, provided the Borrower is the
surviving corporation, or (ii) a merger between or among two or more Restricted
Subsidiaries, or (iii) in connection with an Acquisition permitted hereunder
effected by a merger in which the Borrower or, in a merger in which the Borrower
is not a party, a Restricted Subsidiary is the surviving corporation or the
surviving corporation becomes a Restricted Subsidiary.
Section 7.5 Limitation on Guaranties. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, at any time Guaranty,
assume, be obligated with respect to, or permit to be outstanding any Guaranty
of, any obligation of any other Person other than (a) a guaranty by endorsement
of negotiable instruments for collection in the ordinary course of business, or
(b) obligations under agreements of the Borrower or any of its Restricted
Subsidiaries entered into in connection
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with Acquisitions permitted under this Agreement leases of real property or the
acquisition of services, supplies and equipment in the ordinary course of
business of the Borrower or any of its Restricted Subsidiaries, or (c)
Guaranties of Indebtedness incurred as permitted pursuant to Section 7.1 hereof,
or (d) as may be contained in any Loan Document including, without limitation,
any Subsidiary Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly
make any loan or advance, or otherwise acquire for consideration evidences of
Indebtedness, capital stock or other securities of any Person or other assets or
property (other than assets or property in the ordinary course of business), or
make any Acquisition, except that so long as no Default then exists or would be
caused thereby:
(a) The Borrower and its Restricted Subsidiaries may,
directly or through a brokerage account (i) purchase marketable, direct
obligations of the United States of America, its agencies and instrumentalities
maturing within three hundred sixty-five (365) days of the date of purchase,
(ii) purchase commercial paper, money-market funds and business savings accounts
issued by corporations, each of which shall have a combined net worth of at
least $100 million and each of which conducts a substantial part of its business
in the United States of America, maturing within two hundred seventy (270) days
from the date of the original issue thereof, and rated "P-2" or better by
Xxxxx'x Investors Service, Inc. or "A-2" or better by Standard and Poor's
Ratings Group, a division of XxXxxx-Xxxx, (iii) purchase repurchase agreements,
bankers' acceptances, and domestic and Eurodollar certificates of deposit
maturing within three hundred sixty-five (365) days of the date of purchase
which are issued by, or time deposits maintained with, a United States national
or state bank the deposits of which are insured by the Federal Deposit Insurance
Corporation or the Federal Savings and Loan Insurance Corporation and having
capital, surplus and undivided profits totaling more than $100 million and rated
"A" or better by Xxxxx'x Investors Service, Inc. or Standard and Poor's Ratings
Group, a division of XxXxxx-Xxxx, Inc.; and
(b) Subject to compliance with Section 5.14 hereof, the
Borrower or any of its Restricted Subsidiaries may (i) make Acquisitions; (ii)
initiate construction of new communications tower facilities; and (iii) make
investments in Unrestricted Subsidiaries so long as the maximum amount of the
proceeds of the Loans invested or used to acquire interests in any such
Unrestricted Subsidiary does not exceed the sum of (A) $13,500,000 in the
aggregate during the term hereof and (B) to the extent not used for Restricted
Payments, funds permitted to be used for Restricted Payments pursuant to
Sections 7.7(a) and
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(b) hereof, provided that proceeds from the disposition of any such investment
permitted by this clause (b)(iii), shall be available to be used for Restricted
Payments or to make additional investments permitted hereunder; provided that
Borrower may, subject to Section 2.5(d) hereof, use the Net Proceeds of any
issuance of equity interests to invest in any such Unrestricted Subsidiary over
and above the limitations set forth in this clause (b).
Section 7.7 Restricted Payments The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly declare or
make any Restricted Payment; provided, however, that so long as no Default
hereunder then exists or would be caused thereby, the Borrower may make (a)
subject to Section 2.5(b) hereof, cash distributions in an amount not to exceed
(i) fifty percent (50%) of Excess Cash Flow for the immediately preceding
calendar year, on or after April 15 of each calendar year commencing on April
15, 2000 less (ii) any portion thereof used for purposes of investing in
Unrestricted Subsidiaries; (b) cash distributions from (i) fifty percent (50%)
of the net proceeds of any equity offering less (ii) any portion thereof used
for purposes of investing in Unrestricted Subsidiaries, subject to Section
2.5(d) hereof and so long as the Leverage Ratio on such date is less than 4.0 to
1 after giving effect to any payment pursuant to Section 2.7(b)(iv) hereof and
(c) a $500,000 cash distribution to Parent or American Radio Systems out of the
Net Proceeds of the Philadelphia Disposition.
Section 7.8 Leverage Ratio. (a) As of the end of any calendar quarter,
and (b) at the time of any Advance hereunder (after giving effect to such
Advance), the Borrower shall not permit its Leverage Ratio to exceed the ratios
set forth below during the periods indicated:
Period Ratio
Agreement Date through 6.00:1
September 29, 1998
September 30, 1998 through 5.50:1
March 30, 1999
March 31, 1999 through 5.00:1
September 29, 1999
September 30, 1999 through 4.50:1
March 30, 2000
March 31, 2000 through 4.00:1
December 30, 2000
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December 31, 2000 through 3.50:1
December 30, 2001
December 31, 2001 and 3.00:1
thereafter
Section 7.9 Interest Coverage Ratio. The Borrower and its consolidated
Restricted Subsidiaries shall maintain, on a consolidated basis, at all times
during the applicable periods set forth below, an Interest Coverage Ratio for
such fiscal quarter of not less than the ratio set forth below opposite each
such period:
Period Ratio
Agreement Date through 2.00:1
September 29, 1999
September 30, 1999 and thereafter 2.50:1
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service.
(a) As of the end of any calendar quarter, and (b) at the time of any Advance
hereunder (after giving effect to such Advance), the Borrower shall not permit
the ratio of (i) its Annualized Operating Cash Flow (for the calendar
quarter/month end being tested in the case of Section 7.10(a) hereof, or for the
most recently completed calendar quarter/month end, in the case of Section
7.10(b) hereof) to (ii) its Pro Forma Debt Service to be less than the ratio set
forth below opposite each such period:
Period Ratio
Agreement Date through 1.10:1
September 29, 1999
September 30, 1999 and 1.15:1
thereafter
Section 7.11 Limitation on Capital Expenditures. The Borrower, on a
consolidated basis with its Restricted
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Subsidiaries, shall not permit its Capital Expenditures to exceed the amounts
set forth below for the periods indicated:
Period Dollar Amount
Agreement Date through $10,000,000
December 31, 1996
From January 1, 1997 $15,000,000
through December 31, 1997
From January 1, 1998 $8,000,000
through December 31, 1998
From January 1, 1999 $4,000,000
through December 31, 1999
and each calendar year
period thereafter
To the extent not used in any calendar year, an amount equal to the lesser of
(a) the unused amounts permitted for Capital Expenditures for such calendar year
and (b) 15% of the maximum Capital Expenditure availability for such calendar
year may (exclusive of any carryforwards from prior periods) be carried forward
to the next calendar year, and may be spent in addition to the otherwise
applicable limitations for such year.
Section 7.12 Affiliate Transactions. Except as specifically provided
herein (including, without limitation, Sections 7.4 and 7.7 hereof) and as may
be described on Schedule 4.1(s) attached hereto, the Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, at any time engage in
any transaction with an Affiliate, or make an assignment or other transfer of
any of its properties or assets to any Affiliate, on terms less advantageous to
the Borrower or such Restricted Subsidiary than would be the case if such
transaction had been effected with a non-Affiliate.
Section 7.13 Real Estate. Subject to Section 5.11 hereof, the Borrower
and its Restricted Subsidiaries may purchase real estate solely for use in the
business of the Borrower and its Restricted Subsidiaries unless incidental to an
Acquisition permitted hereunder.
Section 7.14 ERISA Liabilities. The Borrower shall not, and shall
cause each of its ERISA Affiliates not to, (i) permit the assets of any of their
respective Plans to be less than the amount necessary to provide all accrued
benefits under such Plans, or (ii) enter into any Multiemployer Plan.
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ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement
shall prove incorrect or misleading in any material respect when made or deemed
to be made pursuant to Section 4.2 hereof;
(b) The Borrower shall default in the payment of: (i) any
interest under any of the Notes or fees or other amounts payable to the Banks
and the Administrative Agent under any of the Loan Documents, or any of them,
when due, and such Default shall not be cured by payment in full within three
(3) Business Days from the due date; or (ii) any principal under any of the
Notes when due;
(c) The Borrower shall default (i) in the performance or
observance of any agreement or covenant contained in Sections 5.2(a) or 5.10
hereof, or Sections 7.1, 7.2, 7.4, 7.5, 7.7, 7.8, 7.9, 7.10 and 7.11 hereof;
(d) The Borrower shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to elsewhere in this Section 8.1, and such default shall
not be cured within a period of thirty (30) days (or with respect to Sections
5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.14, 5.15, 5.16, 6.4, 6.5, 7.3, 7.12, 7.13
and 7.14, such longer period not to exceed sixty (60) days if such default is
curable within such period and the Borrower is proceeding in good faith with all
diligent efforts to cure such default) from the later of (i) occurrence of such
Default and (ii) the date on which such Default became known to the Borrower;
(e) There shall occur any default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the Loan Documents (other than this Agreement or as
otherwise provided in Section 8.1 of this Agreement) by the Borrower, any of its
Restricted Subsidiaries, or any other obligor thereunder, which shall not be
cured within a period of thirty (30) days (or such longer period not to exceed
sixty (60) days if such default is cured within such period and the Borrower is
proceeding in good faith with all diligent efforts to cure such default) from
the
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later of (i) occurrence of such Default and (ii) date on which such default
became known to the Borrower;
(f) There shall be entered and remain unstayed a decree or
order for relief in respect of the Borrower or any of the Borrower's Restricted
Subsidiaries under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable Federal or state bankruptcy law or
other similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Borrower or any of the
Borrower's Restricted Subsidiaries, or of any substantial part of their
respective properties, or ordering the winding-up or liquidation of the affairs
of the Borrower, or any of the Borrower's Restricted Subsidiaries; or an
involuntary petition shall be filed against the Borrower or any of the
Borrower's Restricted Subsidiaries and a temporary stay entered, and (i) such
petition and stay shall not be diligently contested, or (ii) any such petition
and stay shall continue undismissed for a period of ninety (90) consecutive
days;
(g) The Borrower or any of the Borrower's Restricted
Subsidiaries shall file a petition, answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other applicable Federal or state bankruptcy law or other similar law, or the
Borrower or any of the Borrower's Restricted Subsidiaries shall consent to the
institution of proceedings thereunder or to the filing of any such petition or
to the appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Borrower or
any of the Borrower's Restricted Subsidiaries or of any substantial part of
their respective properties, or the Borrower or any of the Borrower's Restricted
Subsidiaries shall fail generally to pay their respective debts as they become
due or shall be adjudicated insolvent; the Borrower shall suspend or discontinue
its business; the Borrower or any of the Borrower's Restricted Subsidiaries
shall have concealed, removed any of its property with the intent to hinder or
defraud its creditors or shall have made a fraudulent or preferential transfer
under any applicable fraudulent conveyance or bankruptcy law, or the Borrower or
any of the Borrower's Restricted Subsidiaries shall take any action in
furtherance of any such action;
(h) A judgment not covered by insurance or indemnification,
where the indemnifying party has agreed to indemnify and is financially able to
do so, shall be entered by any court against the Borrower or any of the
Borrower's Restricted Subsidiaries for the payment of money which exceeds singly
or in the aggregate with other such judgments, $1,000,000, or a warrant of
attachment or execution or similar process shall be issued or levied against
property of the Borrower or any of
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the Borrower's Restricted Subsidiaries which, together with all other such
property of the Borrower or any of the Borrower's Restricted Subsidiaries
subject to other such process, exceeds in value $1,000,000 in the aggregate, and
if, within thirty (30) days after the entry, issue or levy thereof, such
judgment, warrant or process shall not have been paid or discharged or stayed
pending appeal or removed to bond, or if, after the expiration of any such stay,
such judgment, warrant or process shall not have been paid or discharged or
removed to bond;
(i) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan maintained by the Borrower or any of its Subsidiaries or any ERISA
Affiliate, or to which the Borrower or any of its Subsidiaries or any ERISA
Affiliate has any liabilities, or any trust created thereunder; or a trustee
shall be appointed by a United States District Court to administer any such
Plan; or PBGC shall institute proceedings to terminate any such Plan; or the
Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur any
liability to PBGC in connection with the termination of any such Plan; or any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
or any ERISA Affiliate shall engage in a "prohibited transaction" (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code;
(j) There shall occur (i) any acceleration of the maturity of
any Indebtedness of the Borrower or any of the Borrower's Restricted
Subsidiaries in an aggregate principal amount exceeding $1,000,000, or, as a
result of a failure to comply with the terms thereof, such Indebtedness shall
otherwise have become due and payable; (ii) any event or condition the
occurrence of which would permit such acceleration of such Indebtedness, or
which, as a result of a failure to comply with the terms thereof, would make
such Indebtedness otherwise due and payable, and which event or condition has
not been cured within any applicable cure period or waived in writing prior to
any declaration of an Event of Default or acceleration of the Loans hereunder;
or (iii) any material default under any Interest Hedge Agreement which would
permit the obligation of the Borrower to make payments to the counterparty
thereunder to be then due and payable;
(k) The Borrower and its Restricted Subsidiaries are for any
reason no longer able to operate or manage the related communications tower
facilities or portions thereof and retain the revenue received therefrom, and
the overall effect of such
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loss, destruction, termination, revocation or failure to renew would be to
reduce Operating Cash Flow (determined as at the last day of the most recently
ended fiscal year of the Borrower) by ten percent (10%) or more;
(l) Any material Loan Document or any material provision
thereof, shall at any time and for any reason be declared by a court of
competent jurisdiction to be null and void, or a proceeding shall be commenced
by the Borrower or any of the Borrower's Restricted Subsidiaries or by any
governmental authority having jurisdiction over the Borrower or any of the
Borrower's Restricted Subsidiaries seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or the Borrower or any of the Borrower's Subsidiaries shall
deny that it has any liability or obligation for the payment of principal or
interest purported to be created under any Loan Document;
(m) Any material Security Document shall for any reason, fail
or cease (except by reason of lapse of time) to create a valid and perfected and
first-priority Lien on or Security Interest in any material portion of the
Collateral purported to be covered thereby;
(n) There shall occur any Change of Control; or
(o) Borrower or any of its Restricted Subsidiaries shall be
indicted under the Racketeer Influenced and Corrupt Organizations Act of 1970
(18 U.S.C. ss. 1961 et seq.).
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1 (other
than an Event of Default under Section 8.1(f) or Section 8.1(g)) shall have
occurred and shall be continuing, the Administrative Agent, at the request of
the Majority Banks subject to Section 9.8(a) hereof, shall (i) terminate the
Commitment, and/or (ii) declare the principal of and interest on the Loans and
the Notes and all other amounts owed to the Banks and the Administrative Agent
under this Agreement, the Notes and any other Loan Documents to be forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, anything in this Agreement, the Notes
or any other Loan Document to the contrary notwithstanding, and the Commitment
shall thereupon forthwith terminate.
(b) Upon the occurrence and continuance of an Event of Default
specified in Section 8.1(f) or Section 8.1(g), all principal, interest and other
amounts due hereunder and under the Notes, and all other Obligations, shall
thereupon and
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concurrently therewith become due and payable and the Commitment shall forthwith
terminate and the principal amount of the Loans outstanding hereunder shall bear
interest at the Default Rate, all without any action by the Administrative Agent
or the Banks or the Majority Banks or any of them and without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or in the other Loan Documents to the contrary
notwithstanding.
(c) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, above, the Administrative Agent and the Banks
shall have all of the post-default rights granted to them, or any of them, as
applicable under the Loan Documents and under Applicable Law.
(d) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, the Administrative Agent shall have the right
(but not the obligation) upon the request of the Banks to operate the
communications tower facilities of the Borrower and its Restricted Subsidiaries
in accordance with the terms of the Licenses and pursuant to the terms and
subject to any limitations contained in the Security Documents and, within
guidelines established by the Majority Banks, to make any and all payments and
expenditures necessary or desirable in connection therewith, including, without
limitation, payment of wages as required under the Fair Labor Standards Act, as
amended, and of any necessary withholding taxes to state or federal authorities.
In the event the Majority Banks fail to agree upon the guidelines referred to in
the preceding sentence within six (6) Business Days' after the Administrative
Agent has begun to operate the communications tower facilities, the
Administrative Agent may, after giving three (3) days' prior written notice to
the Banks of its intention to do so, make such payments and expenditures as it
deems reasonable and advisable in its sole discretion to maintain the normal
day-to-day operation of such communications tower facilities. Such payments and
expenditures in excess of receipts shall constitute Advances under the
Commitment, not in excess of the amount of the Commitment. Advances made
pursuant to this Section 8.2(d) shall bear interest as provided in Section
2.3(d) and shall be payable on demand. The making of one or more Advances under
this Section 8.2(d) shall not create any obligation on the part of the Banks to
make any additional Advances hereunder. No exercise by the Administrative Agent
of the rights granted to it under this Section 8.2(d) shall constitute a waiver
of any other rights and remedies granted to the Administrative Agent and the
Banks, or any of them, under this Agreement or at law. The Borrower hereby
irrevocably appoints the Administrative Agent as agent for the Banks, the true
and lawful attorney of the Borrower, in its name and stead and on its behalf, to
execute, receipt for or otherwise act in connection with any and all contracts,
instruments or
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other documents in connection with the completion and operation of the
communications tower facilities in the exercise of the Administrative Agent's
and the Banks' rights under this Section 8.2(d). Such power of attorney is
coupled with an interest and is irrevocable. The rights of the Administrative
Agent under this Section 8.2(d) shall be subject to its prior compliance with
the Communications Act and the FCC rules and policies promulgated thereunder to
the extent applicable to the exercise of such rights.
(e) Upon acceleration of the Notes, as provided in subsection
(a) or (b) of this Section 8.2, the Administrative Agent, upon request of the
Majority Banks, shall have the right to the appointment of a receiver for the
properties and assets of the Borrower and its Restricted Subsidiaries, and the
Borrower, for itself and on behalf of its Restricted Subsidiaries, hereby
consents to such rights and such appointment and hereby waives any objection the
Borrower or any Restricted Subsidiary may have thereto or the right to have a
bond or other security posted by the Administrative Agent on behalf of the
Banks, in connection therewith. The rights of the Administrative Agent under
this Section 8.2(e) shall be subject to its prior compliance with the
Communications Act and the FCC rules and policies promulgated thereunder to the
extent applicable to the exercise of such rights.
(f) The rights and remedies of the Administrative Agent and
the Banks hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments under this Agreement made to the Administrative Agent and the
Banks or otherwise received by any of such Persons (from realization on
Collateral for the Obligations or otherwise) shall be paid over to the
Administrative Agent (if necessary) and distributed by the Administrative Agent
as follows: first, to the Administrative Agent's reasonable costs and expenses,
if any, incurred in connection with the collection of such payment or
prepayment, including, without limitation, any reasonable costs incurred by it
in connection with the sale or disposition of any Collateral for the Obligations
and all amounts under Section 11.2(b) and (c); second, to the Banks or the
Administrative Agent for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to the Banks pro rata on the basis of
their respective unpaid principal amounts (except as provided in Section
2.2(e)), to the payment of any unpaid interest which may have accrued on the
Obligations; fourth, to the Banks pro rata until all Loans have been paid in
full (and, for purposes of this clause, obligations under Interest Hedge
Agreements with the
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Banks or any of them shall be paid on a pro rata basis with the Loans); fifth,
to the Banks pro rata on the basis of their respective unpaid amounts, to the
payment of any other unpaid Obligations; and sixth, to the Borrower or as
otherwise required by law.
ARTICLE 9
The Administrative Agent
Section 9.1 Appointment and Authorization. Each Bank hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Note
irrevocably to appoint and authorize, the Administrative Agent to take such
actions as its agent on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Neither the
Administrative Agent, nor any of its respective directors, officers, employees
or agents, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat each
Bank, or the Person designated in the last notice filed with the Administrative
Agent, as the holder of all of the interests of such Bank in its portion of the
Loans and in its Note until written notice of transfer, signed by such Bank (or
the Person designated in the last notice filed with the Administrative Agent)
and by the Person designated in such written notice of transfer, in form and
substance satisfactory to the Administrative Agent, shall have been filed with
the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent may
consult with Powell, Goldstein, Xxxxxx & Xxxxxx, Atlanta, Georgia, special
counsel to the Administrative Agent, or with other legal counsel selected by it
and shall not be liable for any action taken or suffered by it in good faith in
consultation with the Majority Banks and in reasonable reliance on such
consultations.
Section 9.4 Documents. The Administrative Agent shall be under no duty
to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in connection
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herewith, and the Administrative Agent shall be entitled to assume that they are
valid, effective and genuine, have been signed or sent by the proper parties and
are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to the
Commitment and the Loans, the Administrative Agent shall have the same rights
and powers hereunder as any other Bank and the Administrative Agent and
Affiliates of the Administrative Agent may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower, any of its
Subsidiaries or any Affiliates of, or Persons doing business with, the Borrower,
as if they were not affiliated with the Administrative Agent and without any
obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent. The duties and
obligations of the Administrative Agent under this Agreement are only those
expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified in writing by
the Borrower, of such fact, or has been notified by a Bank in writing that such
Bank considers that a Default or an Event of Default has occurred and is
continuing, and such Bank shall specify in detail the nature thereof in writing.
The Administrative Agent shall not be liable hereunder for any action taken or
omitted to be taken except for its own gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction. The Administrative Agent shall provide each Bank with copies of
such docum ents received from the Borrower as such Bank may reasonably request.
Section 9.7 Action by the Administrative Agent.
(a) The Administrative Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights
which may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect
of, this Agreement, unless the Administrative Agent shall have been instructed
by the Majority Banks to exercise or refrain from exercising such rights or to
take or refrain from taking such action; provided that the Administrative Agent
shall not exercise any rights under Section 8.2(a) of this Agreement without the
request of the Majority Banks (or, where expressly required, all the Banks)
unless time is of the essence, in which case, such action can be taken at the
request of the Administrative Agent. The Administrative Agent shall incur no
liability under or in respect of this Agreement with respect to anything which
it may do or refrain from doing in the reasonable exercise of its
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judgment or which may seem to it to be necessary or desirable in the
circumstances, except for its gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court having
jurisdiction over the subject matter.
(b) The Administrative Agent shall not be liable to the Banks
or to any Bank or the Borrower or any of the Borrower's Subsidiaries in acting
or refraining from acting under this Agreement or any other Loan Document in
accordance with the instructions of the Majority Banks (or, where expressly
required, all the Banks), and any action taken or failure to act pursuant to
such instructions shall be binding on all Banks, except for its gross negligence
or willful misconduct as determined by a final, non-appealable judicial order of
a court having jurisdiction over the subject matter. The Administrative Agent
shall not be obligated to take any action which is contrary to law or which
would in its reasonable opinion subject it to liability.
Section 9.8 Notice of Default or Event of Default. In the event that
the Administrative Agent or any Bank shall acquire actual knowledge, or shall
have been notified, of any Default or Event of Default, the Administrative Agent
or such Bank shall promptly notify the Banks (provided failure to give such
notice shall not result in any liability on the part of such Bank or
Administrative Agent), and the Administrative Agent shall take such action and
assert such rights under this Agreement and the other Loan Documents as the
Majority Banks shall request in writing, and the Administrative Agent shall not
be subject to any liability by reason of its acting pursuant to any such
request. If the Majority Banks shall fail to request the Administrative Agent to
take action or to assert rights under this Agreement or any other Loan Documents
in respect of any Default or Event of Default within ten (10) days after their
receipt of the notice of any Default or Event of Default from the Administrative
Agent or any Bank, or shall request inconsistent action with respect to such
Default or Event of Default, the Administrative Agent may, but shall not be
required to, take such action and assert such rights (other than rights under
Article 8 hereof) as it deems in its discretion to be advisable for the
protection of the Banks, except that, if the Majority Banks have instructed the
Administrative Agent not to take such action or assert such right, in no event
shall the Administrative Agent act contrary to such instructions unless time is
of the essence, in which case, the Administrative Agent may act in accordance
with its reasonable discretion.
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Section 9.9 Responsibility Disclaimed. The Administrative Agent shall
not be under any liability or responsibility whatsoever as Administrative Agent:
(a) To the Borrower or any other Person as a consequence of
any failure or delay in performance by or any breach by, any Bank or Banks of
any of its or their obligations under this Agreement;
(b) To any Bank or Banks, as a consequence of any failure or
delay in performance by, or any breach by, (i) the Borrower of any of its
obligations under this Agreement or the Notes or any other Loan Document, or
(ii) any Restricted Subsidiary of the Borrower or any other obligor under any
other Loan Document;
(c) To any Bank or Banks, for any statements, representations
or warranties in this Agreement, or any other document contemplated by this
Agreement or any information provided pursuant to this Agreement, any other Loan
Document, or any other document contemplated by this Agreement, or for the
validity, effectiveness, enforceability or sufficiency of this Agreement, the
Notes, any other Loan Document, or any other document contemplated by this
Agreement; or
(d) To any Person for any act or omission other than that
arising from gross negligence or willful misconduct of the Administrative Agent
as determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
Section 9.10 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses (other than the loss of principal and interest
hereunder in the event of a bankruptcy or out-of-court `work-out' of the Loans),
damages, penalties, actions, judgments, suits, costs, expenses (including fees
and expenses of experts, agents, consultants and counsel), or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement or any other Loan Document or any action taken or omitted by the
Administrative Agent under this Agreement, any other Loan Document, or any other
document contemplated by this Agreement, except that no Bank shall be liable to
the Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from the gross negligence or willful misconduct of the
Administrative Agent as determined by a final, non-appealable
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judicial order of a court having jurisdiction over the subject matter.
Section 9.11 Credit Decision. Each Bank represents and warrants to
each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement and to
make its portion of the Loans it has independently taken whatever steps it
considers necessary to evaluate the financial condition and affairs of the
Borrower and that it has made an independent credit judgment, and that it has
not relied upon the Administrative Agent or information provided by the
Administrative Agent (other than information provided to the Administrative
Agent by the Borrower and forwarded by the Administrative Agent to the Banks);
and
(b) So long as any portion of the Loans remains outstanding or
such Bank has an obligation to make its portion of Advances hereunder, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Borrower.
Section 9.12 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Banks and the Borrower and may be removed at any time for cause
by the Majority Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Administrative Agent which
appointment shall, prior to a Default, be subject to the consent of the
Borrower, acting reasonably. If (a) no successor Administrative Agent shall have
been so appointed by the Majority Banks or (b) if appointed, no successor
Administrative Agent shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gave notice of resignation or the
Majority Banks removed the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent which shall be any Bank or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000 and
which shall be reasonably acceptable to the Borrower. 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, powers, privileges, duties and obligations of the
retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent the provisions of
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this Article shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent. In the event that the Administrative Agent or any of its respective
affiliates ceases to be a Bank hereunder, such Person shall resign its agency
hereunder.
Section 9.13 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care, and shall be entitled to advice
of counsel concerning all matters pertaining to such duties.
ARTICLE 10
Change in Circumstances
Affecting LIBOR Advances
Section 10.1 LIBOR Basis Determination Inadequate or Unfair. If with
respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Banks that deposits
in dollars (in the applicable amount) are not being offered to each of the Banks
in the relevant market for such Interest Period, the Administrative Agent shall
forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Administrative Agent notifies the Borrower that the circumstances giving rise to
such situation no longer exist, the obligations of any affected Bank to make its
portion of such LIBOR Advances shall be suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of
any Applicable Law, or any change in any Applicable Law (whether adopted before
or after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Bank to make, maintain or fund its portion of LIBOR Advances,
such Bank shall so notify the Administrative Agent, and the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower. Before
giving any notice to the Administrative Agent pursuant to this Section 10.2,
such Bank shall designate a different lending office if such designation will
avoid the need for giving such notice and will not, in the sole reasonable
judgment of such Bank, be otherwise materially disadvantageous to such Bank.
Upon receipt of such notice, notwithstanding anything contained in Article 2
hereof, the Borrower shall repay in full the then outstanding principal amount
of such Bank's portion of
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each affected LIBOR Advance, together with accrued interest thereon, on either
(a) the last day of the then current Interest Period applicable to such affected
LIBOR Advances if such Bank may lawfully continue to maintain and fund its
portion of such LIBOR Advance to such day or (b) immediately if such Bank may
not lawfully continue to fund and maintain its portion of such affected LIBOR
Advances to such day. Concurrently with repaying such portion of each affected
LIBOR Advance, the Borrower may borrow a Base Rate Advance from such Bank,
whether or not it would have been entitled to effect such borrowing and such
Bank shall make such Advance, if so requested, in an amount such that the
outstanding principal amount of the affected Note held by such Bank shall equal
the outstanding principal amount of such Note or Notes immediately prior to such
repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Bank with any directive (whether or not having the force of law) of any
such authority, central bank or comparable agency:
(1) shall subject any Bank to any tax, duty or
other charge with respect to its obligation to make its portion of
LIBOR Advances, or its portion of existing Advances, or shall change
the basis of taxation of payments to any Bank of the principal of or
interest on its portion of LIBOR Advances or in respect of any other
amounts due under this Agreement, in respect of its portion of LIBOR
Advances or its obligation to make its portion of LIBOR Advances
(except for changes in the rate or method of calculation of tax on the
revenues or net income of such Bank); or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System, but excluding any included in
an applicable Eurodollar Reserve Percentage), special deposit, capital
adequacy, assessment or other requirement or condition against assets
of, deposits with or for the account of, or commitments or credit
extended by, any Bank or shall impose on any Bank or the London
interbank borrowing market any other condition affecting its
obligation to make its portion of such LIBOR Advances or its portion
of existing Advances;
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and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Bank under this Agreement or
under its Note with respect thereto, then, within ten (10) days after demand by
such Bank, the Borrower agrees to pay to such Bank such additional amount or
amounts as will compensate such Bank for such increased costs. Each Bank will
promptly notify the Borrower and the Administrative Agent of any event of which
it has knowledge, occurring after the date hereof, which will entitle such Bank
to compensation pursuant to this Section 10.3 and will designate a different
lending office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole reasonable judgment of such Bank
made in good faith, be otherwise disadvantageous to such Bank.
(b) Any Bank claiming compensation under this Section 10.3
shall provide the Borrower with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail. Such certificate shall be presumptively correct
absent manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods. If any Bank demands compensation
under this Section 10.3, the Borrower may at any time, upon at least five (5)
Business Days' prior notice to such Bank, prepay in full such Bank's portion of
the then outstanding LIBOR Advances, together with accrued interest thereon to
the date of prepayment, along with any reimbursement required under Section 2.10
hereof. Concurrently with prepaying such portion of LIBOR Advances the Borrower
may, whether or not then entitled to make such borrowing, borrow a Base Rate
Advance, or a LIBOR Advance not so affected, from such Bank, and such Bank
shall, if so requested, make such Advance in an amount such that the outstanding
principal amount of the affected Note or Notes held by such Bank shall equal the
outstanding principal amount of such Note or Notes immediately prior to such
prepayment.
Section 10.4 Effect On Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 suspending the obligation of any Bank to
make its portion of any type of LIBOR Advance, or requiring such Bank's portion
of LIBOR Advances to be repaid or prepaid, then, unless and until such Bank
notifies the Borrower that the circumstances giving rise to such repayment no
longer apply, all amounts which would otherwise be made by such Bank as its
portion of LIBOR Advances shall, unless otherwise notified by the Borrower, be
made instead as Base Rate Advances.
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ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) Except as otherwise expressly provided herein, all
notices and other communications under this Agreement and the other Loan
Documents (unless otherwise specifically stated therein) shall be in writing and
shall be deemed to have been given three (3) Business Days after deposit in the
mail, designated as certified mail, return receipt requested, postage-prepaid,
or one (1) Business Day after being entrusted to a reputable commercial
overnight delivery service for next day delivery, or when sent on a Business Day
prior to 5:00 p.m. (New York time) by telecopy addressed to the party to which
such notice is directed at its address determined as provided in this Section
11.1. All notices and other communications under this Agreement shall be given
to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
American Tower Systems, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx,
Chief Executive Officer
and Xxxxx X. Xxx, Chief Financial Officer
with a copies to:
American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Chief Financial Officer
and
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
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(ii) If to the Administrative Agent, to
it at:
Toronto Dominion (Texas), Inc.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Agency Department
with a copy to:
The Toronto-Dominion Bank
USA Division
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Director, Communications Finance
and
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
(iii) If to the Banks, to them at the addresses set
forth beside their names on the signature pages
hereof.
The failure to provide copies shall not affect the validity of the notice given
to the primary recipient.
(b) Any party hereto may change the address to which
notices shall be directed under this Section 11.1 by giving ten (10) days'
written notice of such change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or reimburse:
(a) all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, negotiation, execution
and delivery of this Agreement and the other Loan Documents, and the
transactions contemplated hereunder and thereunder and the making of the initial
Advance hereunder (whether or not such Advance is made), including, but not
limited to, the reasonable fees and disbursements of Powell, Goldstein, Xxxxxx &
Xxxxxx, special counsel for the Administrative Agent; and
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(b) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Banks of enforcement under this Agreement or the
other Loan Documents and all reasonable out-of-pocket costs and expenses of
collection if an Event of Default occurs in the payment of the Notes, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Banks.
Section 11.3 Waivers. The rights and remedies of the Administrative
Agent and the Banks under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent, the Majority
Banks, or the Banks, or any of them, in exercising any right, shall operate as a
waiver of such right. The Administrative Agent and the Banks expressly reserve
the right to require strict compliance with the terms of this Agreement in
connection with any future funding of a Request for Advance. In the event the
Banks decide to fund a Request for Advance at a time when the Borrower is not in
strict compliance with the terms of this Agreement, such decision by the Banks
shall not be deemed to constitute an undertaking by the Banks to fund any
further Request for Advance or preclude the Banks or the Administrative Agent
from exercising any rights available under the Loan Documents or at law or
equity. Any waiver or indulgence granted by the Administrative Agent, the Banks,
or the Majority Banks, shall not constitute a modification of this Agreement or
any other Loan Document, except to the extent expressly provided in such waiver
or indulgence, or constitute a course of dealing at variance with the terms of
this Agreement or any other Loan Document such as to require further notice of
their intent to require strict adherence to the terms of this Agreement or any
other Loan Document in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default and during the continuation thereof,
the Administrative Agent and each of the Banks are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Bank or Administrative Agent, to or for the
credit or the account of the Borrower or any of its Restricted Subsidiaries,
against and on account of the obligations and liabilities of the Borrower to the
Banks and the Administrative Agent, including, but not limited to, all
Obligations and any other claims of any nature or description arising out of or
connected with this Agreement, the
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Notes or any other Loan Document, irrespective of whether (a) any Bank or
Administrative Agent shall have made any demand hereunder or (b) any Bank or
Administrative Agent shall have declared the principal of and interest on the
Loans and other amounts due hereunder to be due and payable as permitted by
Section 8.2 and although such obligations and liabilities or any of them shall
be contingent or unmatured. Upon direction by the Administrative Agent with the
consent of all of the Banks each Bank holding deposits of the Borrower or any of
its Restricted Subsidiaries shall exercise its set-off rights as so directed;
and, within one (1) Business Day following any such setoff, the Administrative
Agent shall give notice thereof to the Borrower. Notwithstanding anything to the
contrary contained in this Section 11.4, no Bank shall exercise any right of
offset without the prior consent of the Majority Banks so long as the
Obligations shall be secured by any real property or real property interest
including leaseholds located in the State of California, it being understood and
agreed that the provisions of this sentence are for the exclusive benefit of the
Banks, may be amended, modified or waived by the Majority Banks without notice
to or consent of the Borrower or any Subsidiary of the Borrower and shall not
constitute a waiver of any rights against the Borrower or any Subsidiary or
against any Collateral.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder, under the Notes or under any other Loan
Document without the prior written consent of each Bank.
(b) Each Bank may sell (i) assignments of any amount of its
interest hereunder to any Bank, or (ii) assignments or participations of one
hundred percent (100%) (or, with the consent of the Borrower, a smaller
percentage) of its interest hereunder to (A) one or more wholly-owned Affiliates
of such Bank (provided that, if such Affiliate is not a financial institution,
such Bank shall be obligated to repurchase such assignment if such Affiliate is
unable to honor its obligations hereunder), or (B) any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank (no assignment shall relieve such Bank from its obligations hereunder).
(c) Each of the Banks may at any time enter into assignment
agreements or participations with one or more other banks or other Persons
pursuant to which each Bank may assign or participate its interest under this
Agreement and the other Loan Documents, including, its interest in any
particular Advance or portion thereof, provided, that (1) all assignments (other
than
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assignments described in clause (b) hereof) shall be in minimum principal
amounts of the lesser of (X) $5,000,000, and (Y) the amount of such Bank's
Commitment (in a single assignment only), and (2) all assignments (other than
assignments described in clause (b) hereof) and participations hereunder shall
be subject to the following additional terms and conditions:
(i) No assignment (except assignments permitted in
Section 11.5(b) hereof) shall be sold without the prior consent of the
Administrative Agent and prior to the occurrence and continuation of
an Event of Default, the consent of the Borrower, which consents shall
not be unreasonably withheld;
(ii) Any Person purchasing a participation or an
assignment of any portion of the Loans from any Bank shall be required
to represent and warrant that its purchase shall not constitute a
"prohibited transaction" (as defined in Section 4.1(m) hereof);
(iii) The Borrower, the Banks, and the Administrative
Agent agree that assignments permitted hereunder (including the
assignment of any Advance or portion thereof) may be made with all
voting rights, and shall be made pursuant to an Assignment and
Assumption Agreement substantially in the form of Exhibit N attached
hereto. An administrative fee of $3,500 shall be payable to the
Administrative Agent by the assigning Bank at the time of any
assignment under this Section 11.5(b);
(iv) No participation agreement shall confer any
rights under this Agreement or any other Loan Document to any
purchaser thereof, or relieve any issuing Bank from any of its
obligations under this Agreement, and all actions hereunder shall be
conducted as if no such participation had been granted; provided,
however, that any participation agreement may confer on the
participant the right to approve or disapprove decreases in the
interest rate, increases in the principal amount of the Loans
participated in by such participant, decreases in fees, extensions of
the Maturity Date or other principal payment date for the Loans or of
the scheduled reduction of the Commitment and releases of Collateral;
(v) Each Bank agrees to provide the Administrative
Agent and the Borrower with prompt written notice of any issuance of
participations in or assignments of its interests hereunder;
(vi) No assignment, participation or other transfer of
any rights hereunder or under the Notes shall be
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effected that would result in any interest requiring registration
under the Securities Act of 1933, as amended, or qualification under
any state securities law;
(vii) No such assignment may be made to any bank or
other financial institution (x) with respect to which a receiver or
conservator (including, without limitation, the Federal Deposit
Insurance Corporation, the Resolution Trust Company or the Office of
Thrift Supervision) has been appointed or (y) that is not "adequately
capitalized" (as such term is defined in Section 131(b)(1)(B) of the
Federal Deposit Insurance Corporation Improvement Act as in effect on
the Agreement Date); and
(viii) If applicable, each Bank shall, and shall cause
each of its assignees to, provide to the Administrative Agent on or
prior to the effective date of any assignment an appropriate Internal
Revenue Service form as required by Applicable Law supporting such
Bank's or assignee's position that no withholding by the Borrower or
the Administrative Agent for U.S. income tax payable by such Bank or
assignee in respect of amounts received by it hereunder is required.
For purposes of this Agreement, an appropriate Internal Revenue
Service form shall mean Form 1001 (Ownership Exemption or Reduced Rate
Certificate of the U.S. Department of Treasury), or Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected
with the Conduct of a Trade or Business in the United States), or any
successor or related forms adopted by the relevant U.S. taxing
authorities.
(d) Except as specifically set forth in Section 11.5(b) or
(c) hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(e) In the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties hereto as if no such participation had been sold.
(f) The provisions of this Section 11.5 shall not apply to
any purchase of participations among the Banks pursuant to Section 2.11 hereof.
Section 11.6 Accounting Principles. All references in this Agreement
to GAAP shall be to such principles as in effect from time to time. All
accounting terms used herein without
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definition shall be used as defined under GAAP. All references to the financial
statements of the Borrower and to its Operating Cash Flow, Total Debt, Fixed
Charges, Pro Forma Debt Service, and other such terms shall be deemed to refer
to such items of the Borrower and its Restricted Subsidiaries, on a fully
consolidated basis. The Borrower shall deliver to the Banks at the same time as
the delivery of any quarterly or annual financial statements required pursuant
to Section 6.1 or 6.2 hereof, as applicable, (a) a description in reasonable
detail of any material variation between the application of GAAP employed in the
preparation of such statements and the application of GAAP employed in the
preparation of the next preceding quarterly or annual financial statements, as
applicable, and (b) reasonable estimates of the differences between such
statements arising as a consequence thereof. If, within thirty (30) days after
the delivery of the quarterly or annual financial statements referred to in the
immediately preceding sentence, the Majority Banks shall object in writing to
the Borrower's determining compliance hereunder on such basis, (1) calculations
for the purposes of determining compliance hereunder shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made, or (2) if requested by the
Borrower, the Majority Banks will negotiate in good faith to amend the covenants
herein to give effect to the changes in GAAP in a manner consistent with this
Agreement (and so long as the Borrower complies in good faith with the
provisions of this Section 11.6, no Default or Event of Default shall occur
hereunder solely as a result of such changes in GAAP).
Section 11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State of
New York applicable to agreements made and to be performed in New York. If any
action or proceeding shall be brought by the Administrative Agent or any Bank
hereunder or under any other Loan Document in order to enforce any right or
remedy under this Agreement or under any Note or any other Loan Document, the
Borrower hereby consents and will, and the Borrower will cause each Restricted
Subsidiary to, submit to the jurisdiction of any state or federal court of
competent jurisdiction sitting within the area comprising the Southern District
of New York on the date of this Agreement. The Borrower, for itself and on
behalf of its Restricted Subsidiaries, hereby agrees that, to the extent
permitted by Applicable Law, service of the summons and complaint and all other
process which may be served in any such suit, action or
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proceeding may be effected by mailing by registered mail a copy of such process
to the offices of the Borrower at the address given in Section 11.1 hereof and
that personal service of process shall not be required. Nothing herein shall be
construed to prohibit service of process by any other method permitted by law,
or the bringing of any suit, action or proceeding in any other jurisdiction. The
Borrower agrees that final judgment in such suit, action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable
hereunder or under the Notes exceed the maximum rate of interest allowed by
Applicable Law, and in the event any such payment is inadvertently made by the
Borrower or inadvertently received by the Administrative Agent or any Bank, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the Administrative Agent or such Bank, in writing, that it elects
to have such excess sum returned forthwith. It is the express intent hereof that
the Borrower not pay and the Administrative Agent and the Banks not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Banks of the Base Rate
and the LIBOR as reference rates for the determination of interest on the Loans,
the Banks shall be under no obligation to obtain funds from any particular
source in order to charge interest to the Borrower at interest rates related to
such reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents
and the headings of the various subdivisions used in this Agreement are for
convenience only and shall not in any way modify or amend any of the terms or
provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any
Loan Document nor any term hereof or thereof may be
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amended orally, nor may any provision hereof or thereof be waived orally but
only by an instrument in writing signed by or at the direction of the Majority
Banks and, in the case of an amendment, by the Borrower, except that in the
event of (a) any increase in the amount of any Bank's portion of the Commitment,
(b) any delay or extension in the terms of repayment of the Loans provided in
Section 2.5 or 2.7 hereof, (c) any reduction in principal, interest or fees due
hereunder or postponement of the payment thereof without a corresponding payment
of such principal, interest or fee amount by the Borrower, (d) any release of
any portion of the Collateral for the Loans, except under Section 7.4 hereof,
(e) any waiver of any Default due to the failure by the Borrower to pay any sum
due to any of the Banks hereunder, (f) any release of any Guaranty of all or any
portion of the Obligations, except in connection with a merger, sale or other
disposition otherwise permitted hereunder (in which case, such release shall
require no further approval by the Banks), (g) any amendment to the pro rata
treatment of the Banks set forth in Section 2.11 hereof, or (h) any amendment of
this Section 11.12, of the definition of Majority Banks, or of any Section
herein to the extent that such Section requires action by all Banks, any
amendment or waiver or consent may be made only by an instrument in writing
signed by each of the Banks and, in the case of an amendment, by the Borrower.
Any amendment to any provision hereunder governing the rights, obligations, or
liabilities of the Administrative Agent in its capacity as such, may be made
only by an instrument in writing signed by such affected Person and by each of
the Banks.
Section 11.13 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement and the other documents described or
contemplated herein will embody the entire agreement and understanding among the
parties hereto and thereto and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder
or under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Bank to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this
Agreement refers to any action taken or to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
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Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (i) shall be deemed to have been
relied upon by the Administrative Agent and each of the Banks notwithstanding
any investigation heretofore or hereafter made by them, and (ii) shall survive
the execution and delivery of the Notes and shall continue in full force and
effect so long as any Note is outstanding and unpaid. Any right to
indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.10, 2.12, 5.12, 10.3 and 11.2 hereof, shall survive the termination
of this Agreement and the payment and performance of all Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the
Security Documents and are intended by the parties hereto to be in parity with
the Interest Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of the
Administrative Agent and each of the Banks hereunder are several, not joint.
Section 11.19 Confidentiality. The Banks shall hold all non-public,
proprietary or confidential information (which has been identified as such by
the Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices;
provided, however, the Banks may make disclosure of any such information to
their examiners, Affiliates, outside auditors, counsel, consultants, appraisers
and other professional advisors in connection with this Agreement or as
reasonably required by any proposed syndicate member or any proposed transferee
or participant in connection with the contemplated transfer of any Note or
participation therein or as required or requested by any governmental authority
or representative thereof or in connection with the enforcement hereof or of any
Loan Document or related document or pursuant to legal process or with respect
to any litigation between or among the Borrower and any of the Banks, so long as
the person (other than any examiners) receiving such information is advised of
the provisions of this Section 11.19 and agrees to be bound thereby. In no event
shall any Bank be obligated or required to return any materials furnished to it
by the Borrower. The foregoing provisions shall not apply to a Bank with respect
to information that (i) is or becomes generally available to the public (other
than through such Bank), (ii) is already in the possession of such Bank on a
nonconfidential basis, or (iii) comes into the possession of such Bank in a
manner not known to such Bank to involve a breach of a duty of confidentiality
owing to the Borrower.
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Section 11.20 Termination of Agreement. Notwithstanding anything
contained in this Agreement or any Loan Document to the contrary, in the event
that the Borrower has failed to satisfy all of the conditions set forth in
Section 3.1 hereof on or prior to December 20, 1996, then at 5:00 p.m. (New York
time) all obligations of the Banks hereunder, pursuant to the Commitment or
otherwise, shall immediately (and without notice of any kind) terminate and be
of no force and effect; provided, however, that notwithstanding any such
termination and irrespective of any such termination, the Borrower hereby agrees
to pay to the Administrative Agent, on or prior to December 20, 1996, the fees
required to be paid pursuant to Section 2.4(a) hereof and hereby acknowledges
that such Section 2.4(a) shall survive any such termination of this Agreement.
Promptly following the termination of the Banks' obligations pursuant to the
preceding sentence, the Banks shall return the Notes to the Borrower and take
reasonable steps (at the expense of the Borrower) as may be requested by the
Borrower to cause any Liens granted under the Loan Documents to be released.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND ON
BEHALF OF ITS RESTRICTED SUBSIDIARIES, AND THE ADMINISTRATIVE AGENT AND THE
BANKS, HEREBY AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE AND HEREBY WAIVE
THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY
TYPE IN WHICH THE BORROWER, ANY OF THE BORROWER'S RESTRICTED SUBSIDIARIES, ANY
OF THE BANKS, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY
OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE
RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 12.1. EXCEPT AS PROHIBITED BY
LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES. EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER ANY
REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY BANK
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY
DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
-87-
PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: AMERICAN TOWER SYSTEMS, INC., a
Delaware corporation
By:
Its:
[CORPORATE SEAL] Attest:
Its:
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
Its:
BANKS:
ADDRESS: TORONTO DOMINION (TEXAS), INC.
000 Xxxxxx Xxxxxx
Xxxxx 0000 By:
Xxxxxxx, Xxxxx 00000
Its:
ADDRESS: BANK OF MONTREAL
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 By:
Its:
AMERICAN TOWER SYSTEMS, INC.
LOAN AGREEMENT
SIGNATURE PAGE 1
ADDRESS: BANQUE PARIBAS
000 Xxxxxxx Xxxxxx
00xx Xxxxx By:
Xxx Xxxx, Xxx Xxxx 00000
Its:
By:
Its:
ADDRESS: CREDIT SUISSE
00 Xxxx 00xx Xxxxxx
00xx Xxxxx By:
Xxx Xxxx, Xxx Xxxx 00000
Its:
By:
Its:
ADDRESS: FLEET NATIONAL BANK
3rd Floor
Mail Code: MAOF D03D By:
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000 Its:
ADDRESS: SIGNET BANK
0000 Xxxxxxxx Xxxx
Xxxxx #000 By:
Xxxxx Xxxxxx, Xxxxxxxx 00000
Its:
ADDRESS: UNION BANK OF CALIFORNIA, N.A.
00xx Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx By:
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Its:
AMERICAN TOWER SYSTEMS, INC.
LOAN AGREEMENT
SIGNATURE PAGE 2
EXHIBIT A
FORM OF
BORROWER'S PLEDGE AGREEMENT
THIS BORROWER'S PLEDGE AGREEMENT (this "Agreement"), entered into as of
this 22nd day of November 1996, by and between American Tower Systems, Inc., a
Delaware corporation (the "Borrower"), and Toronto Dominion (Texas), Inc. (the
"Administrative Agent") as administrative agent for itself and on behalf of the
Banks.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Administrative Agent are all
parties to that certain Loan Agreement dated as of even date herewith (the "Loan
Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Borrower is required to execute and deliver this Agreement; and
WHEREAS, to secure the payment and performance of, among other things,
all obligations of the Borrower under the Loan Agreement and the promissory
notes issued by the Borrower to the Banks thereunder (the "Notes"), the Borrower
and the Administrative Agent (on behalf of itself and the Banks), have agreed
that the shares of capital stock (the "Stock") owned by the Borrower in each of
the Subsidiaries of the Borrower listed on Schedule 1 attached hereto, which are
the only directly owned corporate Subsidiaries of the Borrower, shall be pledged
by the Borrower to the Administrative Agent (on behalf of itself and the Banks)
to secure the Obligations;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Warranty. The Borrower hereby represents and warrants to the
Administrative Agent and the Banks that, except for the security interest
created hereby, the Borrower owns the Stock, which constitutes the percentage of
the issued and outstanding stock of the Subsidiaries as set forth on Schedule 1
attached hereto, free and clear of all Liens, that the Stock is duly issued,
fully paid and non-assessable, and that the Borrower has the unencumbered right
to pledge the Stock. In addition, the Borrower represents and covenants as
follows: (1) the Stock represents all
of Borrower's shares of capital stock in any Subsidiary of the Borrower; (2)
upon possession and retention of the Stock by the Administrative Agent, the
Administrative Agent shall have a valid and perfected first priority security
interest in the Stock, securing the payment of the Obligations; and (3) except
as noted on Schedule 2 attached hereto, the Stock represents all of the
outstanding shares of stock issued by any direct Subsidiary of the Borrower.
2. Security Interest. Subject to the provisions of Section 13 hereof,
the Borrower hereby unconditionally grants and assigns to the Administrative
Agent, for itself and on behalf of the Banks, and their respective successors
and assigns, a continuing security interest in and security title to the Stock
and any other shares of capital stock of any Subsidiary of the Borrower obtained
in the future, and in each case, all certificates representing such shares, all
rights, options, warrant, stock or other securities or other property which may
hereafter be received, receivable or distributed in respect of the Stock,
together with all proceeds of the foregoing, including, without limitation, all
dividends, cash, notes, securities or other property from time to time acquired,
receivable or otherwise distributed in respect of, or in exchange for, the
foregoing, all of which shall constitute "Stock" hereunder. The Borrower has
delivered to and deposited with the Administrative Agent all of its right, title
and interest in and to the Stock, together with certificates representing the
Stock, and undated stock powers endorsed in blank, as security for the
Obligations; it being the intention of the parties hereto that beneficial
ownership of the Stock, including, without limitation, all voting, consensual
and dividend rights, shall remain in the Borrower until the occurrence and
during continuance of an Event of Default under the terms of the Loan Agreement
and until the Administrative Agent shall notify the Borrower of the
Administrative Agent's exercise of voting and dividend rights to the Stock
pursuant to Section 9 of this Agreement.
3. Additional Shares. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification,
readjustment, or other change is declared or made in the capital
structure of any directly owned Subsidiary, or any new stock is issued
by such Subsidiary, or any new directly owned Subsidiary is formed or
acquired, all new, substituted, and additional shares shall be issued
to the Borrower and shall be promptly delivered to the Administrative
Agent, together with undated stock powers endorsed in blank by the
Borrower, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement; and
(b) any subscriptions, warrants or any other rights or options
shall be issued in connection with the Stock, all new stock or other
securities acquired through such subscriptions,
- 2 -
warrants, rights or option by the Borrower shall be promptly delivered
to the Administrative Agent, together with undated stock powers
endorsed in blank, and shall thereupon constitute Stock to be held by
the Administrative Agent under the terms of this Agreement.
4. Default. In the event of the occurrence of an Event of Default and
so long as any such Event of Default is continuing, subject, however, to Section
13 hereof, the Administrative Agent may sell or otherwise dispose of the Stock
at a public or private sale or make other commercially reasonable disposition of
the Stock or any portion thereof after fifteen (15) days' notice to the
Borrower, and the Administrative Agent and the Banks or any of them, may
purchase the Stock or any portion thereof at any public sale. The proceeds of
the public or private sale or other disposition shall be applied first to the
costs of the Administrative Agent incurred in connection with the sale,
expressly including, without limitation, any costs under Section 7 hereof, and
then to the Obligations as provided in the Loan Agreement. In the event the
proceeds of the sale or other disposition of the Stock are insufficient to
satisfy the Obligations, the Borrower shall remain liable for any such
deficiency. The Borrower waives, to the extent permitted by Applicable Law, the
rights of equity of redemption, appraisal, notice of acceptance, presentment,
demand and marshalling, to the extent applicable.
5. Additional Rights of Secured Party. In addition to its rights and
privileges under this Agreement, the Administrative Agent, on behalf of itself
and the Banks, shall have all the rights, powers and privileges of a secured
party under the Uniform Commercial Code as in effect in any applicable
jurisdiction and other Applicable Law.
6. Return of Stock to the Borrower. Upon payment in full of all
principal and interest on the Notes, full performance by the Borrower of all
covenants, undertakings and obligations under the Loan Agreement, the Notes, and
the other Loan Documents, and satisfaction in full of any other Obligations,
other than the Obligations which survive the termination of the Loan Agreement
as provided in Section 11.16 of the Loan Agreement, and after such time as the
Banks shall have no obligation to make any further Advances to the Borrower,
this Agreement shall terminate and the Administrative Agent shall return the
remaining Stock and all rights received by the Administrative Agent as a result
of its possessory interest in the Stock to the Borrower.
7. Disposition of Stock by Administrative Agent. The Stock is not
registered or qualified under the various Federal or state securities laws of
the United States and disposition thereof after default may be restricted to one
or more private (instead of public) sales. The Borrower understands that upon
such disposition, the Administrative Agent may approach only a
- 3 -
restricted number of potential purchasers and further understands that a sale
under such circumstances may yield a lower price for the Stock than if the Stock
were registered and qualified pursuant to Federal and state securities laws and
sold on the open market.
The Borrower, therefore, agrees that:
(a) if the Administrative Agent shall, pursuant to the terms
of this Agreement, sell or cause the Stock or any portion thereof to be
sold at a private sale, the Administrative Agent shall have the right
to rely upon the advice and opinion of any national brokerage or
investment firm having recognized expertise and experience in
connection with shares of communications tower companies (but shall not
be obligated to seek such advice and the failure to do so shall not be
considered in determining the commercial reasonableness of such action)
as to the best manner in which to expose the Stock for sale and as to
the best price reasonably obtainable at the private sale thereof; and
(b) that such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner absent manifest error.
8. Borrower's Obligations Absolute. The obligations of the Borrower
under this Agreement shall be direct and immediate and not conditional or
contingent upon the pursuit of any remedies against the Borrower or any other
Person, nor against other security or liens available to the Administrative
Agent or any Bank. The Borrower hereby waives any right to require that an
action be brought against any other Person or to require that resort be had to
any other security or to any balance of any deposit account or credit on the
books of the Administrative Agent or any of the Banks in favor of any other
Person prior to the exercise of remedies hereunder, or to require action
hereunder prior to resort by the Administrative Agent to any other security or
collateral for the Notes and the other Obligations. No amendment, modification,
waiver, transfer or renewal, extension, assignment or termination of this
Agreement or of the Loan Agreement or of any other Loan Document, or of any
instrument or document executed and delivered by the Borrower or any other
obligor with respect to the Obligations to the Banks and the Administrative
Agent, or any of them, nor additional advances made by the Banks and the
Administrative Agent, or any of them, to the Borrower, nor the taking of further
security, nor the retaking or re-delivery or release of the Collateral or any
other collateral or guaranty to the Borrower by the Banks and the Administrative
Agent, or any of them, nor any lack of validity or enforceability of any Loan
Document or any term thereof, nor any other act of the Banks and the
Administrative Agent, or any of them, shall release the Borrower from any
Obligation, except a release or discharge executed in writing by the
Administrative Agent in accordance with the Loan Agreement with respect to such
Obligation or upon full payment and satisfaction of all Obligations. Neither the
- 4 -
Administrative Agent nor any Bank shall, by any act, delay, omission or
otherwise, be deemed to have waived any of its or their rights or remedies
hereunder, unless such waiver is in writing and signed by the Administrative
Agent in accordance with the Loan Agreement and then only to the extent therein
set forth. A waiver by the Banks and the Administrative Agent, or any of them,
of any right or remedy on any occasion shall not be construed as a bar to the
exercise of any such right or remedy which any such Person would otherwise have
had on any other occasion.
9. Voting Rights.
(a) For so long as the Notes or any other Obligations remain
unpaid, after and during the continuation of an Event of Default, but
subject to the provisions of Section 13 hereof, (i) the Administrative
Agent may, upon fifteen (15) days' prior written notice to the Borrower
of its intention to do so, exercise all voting rights, and all other
ownership or consensual rights of the Stock, but under no circumstances
is the Administrative Agent obligated by the terms of this Agreement to
exercise such rights, and (ii) the Borrower hereby appoints the
Administrative Agent, which appointment shall be effective on the
fifteenth (15th) day following the giving of notice by the
Administrative Agent as provided in the foregoing Section 9(a)(i), the
Borrower's true and lawful attorney-in-fact and IRREVOCABLE PROXY to
vote the Stock in any manner the Administrative Agent deems advisable
for or against all matters submitted or which may be submitted to a
vote of shareholders. The power-of-attorney granted hereby is coupled
with an interest and shall be irrevocable.
(b) For so long as the Borrower shall have the right to vote
the Stock, the Borrower covenants and agrees that it will not, without
the prior written consent of the Administrative Agent, vote or take any
consensual action with respect to the Stock which would constitute an
Event of Default.
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing, and shall be given in the manner and at the
addresses set forth in Section 11.1 of the Loan Agreement.
11. Binding Agreement. The provisions of this Agreement shall be
construed and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in the State of New York. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement between the parties with respect to the matters addressed
herein and may not be modified except by a writing executed by the
Administrative Agent and the Borrower and delivered by the Administrative Agent
to the Borrower.
- 5 -
12. Severability. If any paragraph or part thereof shall for any
reason be held or adjudged to be invalid, illegal or unenforceable by any court
of competent jurisdiction, such paragraph or part thereof so adjudicated
invalid, illegal or unenforceable shall be deemed separate, distinct and
independent, and the remainder of this Agreement shall remain in full force and
effect and shall not be affected by such holding or adjudication.
13. FCC Compliance. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
which may require the consent or approval of the FCC, and the proxy granted in
Section 9(a) shall not become effective, unless and until all requirements of
the Communications Act requiring the consent to or approval of such action by
the FCC have been satisfied. The Borrower covenants that, following and during
the continuation of an Event of Default, upon request of the Administrative
Agent, it will cause to be filed such applications and take such other action as
may be reasonably requested by the Administrative Agent to obtain consent or
approval of the FCC to any action contemplated by this Agreement and to give
effect to the security interest of the Administrative Agent, including, without
limitation, the execution of an application for consent by the FCC to an
assignment or transfer involving a change in ownership or control pursuant to
the provisions of the Communications Act.
14. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
15. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of all the
Banks, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of all the Banks.
- 6 -
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
BORROWER: AMERICAN TOWER SYSTEMS, INC.,
a Delaware corporation
By:
[CORPORATE SEAL] Title:
Attest:
Title:
Address:
American Tower Systems, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxx
Telecopy: 610/341-1835
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
Title:
SCHEDULES
Schedule 1 - Shares Pledged Pursuant to Pledge Agreement
Schedule 2 - Outstanding Shares of Stock
BORROWER'S PLEDGE AGREEMENT
SIGNATURE PAGE 1
EXHIBIT B
FORM OF
BORROWER SECURITY AGREEMENT
THIS BORROWER SECURITY AGREEMENT (this "Agreement") dated as of the
22nd day of November 1996, by and between American Tower Systems, Inc., a
Delaware corporation (the "Borrower"), and Toronto Dominion (Texas), Inc., as
administrative agent (the "Administrative Agent") for itself and the Banks.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks and the Administrative Agent are all
parties to that certain Loan Agreement dated as of even date herewith (the "Loan
Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Borrower is required to execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Grant of Security Interest. Subject to the provisions of
Sections 23 and 25 hereof, and to the extent permitted by Applicable Law in the
case of the Licenses, the Borrower hereby unconditionally grants and assigns to
the Administrative Agent (for itself and the Banks) a continuing security
interest in and security title to (hereinafter referred to as the "Security
Interest") all of its property and assets and all additions thereto and
replacements thereof, and all other property whether now owned or hereafter
created, acquired or reacquired by the Borrower, including:
Inventory
All of the Borrower's inventory and supplies of whatsoever nature and
kind and wheresoever situated, including, without limitation, raw materials,
components, work in process, finished goods, goods in transit and packing and
shipping materials, accretions and accessions thereto, trust receipts and
similar documents covering the same products (the "Inventory");
Accounts
All right to payment for goods sold or leased or for services rendered,
expressly including, without limitation, in connection with owning, leasing,
managing and operating communications tower facilities, whether or not earned by
performance, including, without limitation, all agreements with and sums due
from customers and other Persons, and all books and records recording,
evidencing or relating to such rights or any part thereof (the "Accounts");
Equipment
All machinery, equipment and supplies (installed and uninstalled) not
included in Inventory above, including motor vehicles and accretions and
accessions thereto; and expressly including, without limitation, towers,
antennas and equipment located at communications tower facilities; any
distribution systems and all components thereof, including, without limitation,
hardware, cables, fiber optic cables, switches, CODECs, computer equipment,
amplifiers, and associated devices; and any other equipment used in connection
with the Borrower's business (the "Equipment");
Contracts and Leases
All assignable (a) construction contracts, subscriber contracts,
customer service agreements, management agreements, rights of way, easements,
pole attachment agreements, transmission capacity agreements, public utility
contracts and other agreements to which the Borrower is a party, whether now
existing or hereafter arising, including, without limitation, those listed on
Exhibit A hereto (the "Contracts"); (b) lease agreements for personal property
to which the Borrower is a party, whether now existing or hereafter arising
including without limitation those listed on Exhibit B hereto (the "Leases");
and (c) other contracts and contractual rights, remedies or provisions now
existing or hereafter arising in favor of the Borrower (the "Other Contracts");
General Intangibles
All general intangibles including personal property not included above,
such as, without limitation, all goodwill, trademarks, trademark applications,
trade names, trade secrets, industrial designs, other industrial or intellectual
property or rights therein, whether under license or otherwise, claims for tax
refunds, and tax refund amounts (the "Intangibles");
-2-
Licenses
To the extent permitted by Applicable Law and subject to Sections 23
and 25 hereof, all franchises, permits and operating rights authorizing or
relating to the Borrower's rights to operate and maintain communications tower
facilities or similar business including, without limitation, the Licenses, all
as more particularly described on Exhibit C attached hereto;
Furniture and Fixtures
All furniture and fixtures in which the Borrower has an interest (the
"Furniture and Fixtures");
Miscellaneous Items
All goods, chattel paper, documents, instruments, supplies, choses in
action, claims, money, deposits, certificates of deposit, stock or share
certificates, and licenses and other rights in intellectual property not
included above (the "Miscellaneous Items"); and
Proceeds
All proceeds of any of the above, and all proceeds of any loss of,
damage to or destruction of the above, whether insured or not insured, and all
other proceeds of any sale, lease or other disposition of any property (or
interest therein) referred to above (including, without limitation, the proceeds
from the sale of any License), together with all proceeds of any policies of
insurance covering any or all of the above, the proceeds of any award in
condemnation with respect to any of the property of the Borrower, any rebates or
refunds, whether for taxes or otherwise, together with all proceeds of any such
proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other Contracts, Leases,
Intangibles, Licenses, Furniture and Fixtures, Miscellaneous Items, and
Proceeds, as described above, are hereinafter collectively referred to as the
"Collateral."
This Agreement and the Security Interest secure the payment and
performance of the Obligations (as defined in the Loan Agreement).
2. Further Assurances. The Borrower hereby authorizes the
Administrative Agent to file such financing statements and such other documents
as the Administrative Agent may reasonably require to protect or perfect the
interest of the Banks and the Administrative Agent in the Collateral, and the
Borrower further irrevocably appoints the Administrative Agent as the Borrower's
attorney-in-fact, with a power of attorney to execute on behalf of the Borrower
such Uniform Commercial Code
-3-
(the "UCC") financing statement forms as the Administrative Agent may from time
to time deem necessary or desirable to protect or perfect such interest in the
Collateral. Such power of attorney is coupled with an interest and shall be
irrevocable. In addition, the Borrower agrees to do, execute and deliver or
cause to be done, executed and delivered all such further acts, documents and
things as the Administrative Agent may reasonably require for the purpose of
perfecting or protecting the rights of the Banks and the Administrative Agent
hereunder or otherwise giving effect to this Agreement, all promptly upon
request therefor.
3. Representations and Warranties. The Borrower represents and
warrants to the Banks and the Administrative Agent that:
(a) Exhibit A attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of the Contracts in
effect on the date hereof which provide for aggregate payments to the
Borrower over the life of any single Contract in excess of $250,000 or
which are otherwise material to the Borrower, and the Borrower will
furnish copies thereof to the Banks and the Administrative Agent upon
the request of the Administrative Agent;
(b) Exhibit B attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of all Leases
providing for aggregate payments to the Borrower over the life of any
single Lease in excess of $100,000, to which the Borrower is party in
effect on the date hereof, and the Borrower will furnish copies thereof
to the Banks and the Administrative Agent upon the request of the
Administrative Agent; and
(c) Exhibit C attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of the Licenses in
effect on the date hereof.
4. Representations and Warranties Concerning Collateral. The
Borrower further represents and warrants that (a) the Security Interest in the
Collateral granted hereunder shall constitute at all times a valid first
priority security interest (subject only to Permitted Liens), vested in the
Administrative Agent, in and upon the Collateral, free of any Liens except for
Permitted Liens, (b) the location of the Inventory and Equipment is as set forth
in Schedule 1 hereto, and (c) none of the Accounts are represented by promissory
notes or other instruments. The Borrower shall take or cause to be taken such
acts and actions as shall be necessary or appropriate to assure that the
Security Interest in the Collateral shall not become subordinate or junior to
the security interests, liens or claims of any other Person, and that the
Collateral shall not otherwise be or become subject to any Lien, except for
Permitted Liens.
-4-
5. Location of Books and Records. The Borrower further
represents and warrants that it now keeps all of its records concerning its
Accounts, Contracts, Leases, Other Contracts, and Intangibles at its chief
executive office, which is the address set forth with respect to the Borrower in
Section 11.1 of the Loan Agreement. The Borrower covenants and agrees that it
shall not keep any of such records at any other address, unless written notice
thereof is given to the Administrative Agent at least thirty (30) days prior to
the creation of any new address for the keeping of such records. The Borrower
further agrees that it shall promptly advise the Administrative Agent, in
writing making reference to this Section 4 of this Agreement, of the opening of
any material new place of business, the closing of any existing material place
of business, or any change in the location of the place where it keeps the
Collateral or of its chief executive officer.
6. Collateral Not Fixtures. The parties intend that, to
the extent permitted by Applicable Law, the Collateral shall remain personal
property irrespective of the manner of its attachment or affixation to realty.
7. Covenants Regarding Collateral. Any and all injury to, or
loss or destruction of, the Collateral shall be at the Borrower's risk, and
shall not release the Borrower from its obligations hereunder. The Borrower
agrees not to sell, transfer, assign, dispose of, mortgage, grant a security
interest in, or encumber any of the Collateral except as permitted under the
Loan Agreement. The Borrower agrees to maintain in force such insurance with
respect to the Collateral as is required under the Loan Agreement. The Borrower
agrees to pay all required taxes, liens, and assessments upon the Collateral,
its use or operation, as required under the Loan Agreement. The Borrower further
agrees that the Administrative Agent may, but shall in no event be obligated to,
upon prior written notice to the Borrower, insure any of the Collateral in such
form and amount as the Administrative Agent may deem necessary or desirable if
the Borrower fails to obtain insurance as required by the Loan Agreement, and
that the Administrative Agent may pay or discharge any taxes if the Borrower
fails to pay such taxes as required by the Loan Agreement or Liens (which are
not Permitted Liens) on any of the Collateral, and the Borrower agrees to pay
any such sum so expended by the Administrative Agent, with interest at the
Default Rate, and such amounts shall be deemed to be a part of the Obligations
secured by the Collateral under the terms of this Agreement.
8. Covenants Regarding Contracts, Other Contracts and Leases.
The Borrower shall (i) fulfill, perform and observe each and every material
condition and covenant contained in any of the Contracts, the Other Contracts or
the Leases other than those being contested in good faith or unless the other
party thereto is in default, (ii) give prompt notice to the Administrative
-5-
Agent of any claim of material default under any Contract, Other Contract or
Lease given to the Borrower or by the Borrower, (iii) at the sole cost and
expense of the Borrower, enforce the performance and observance of each and
every material covenant and condition of the Contracts, the Other Contracts and
the Leases, and (iv) appear in and defend any action growing out of or in any
manner connected with any Contract, Other Contract or Lease other than those
which in the Borrower's reasonable business judgment are no longer in the best
interest of the Borrower to enforce and which have been approved by the
Administrative Agent. The rights and interests granted to the Administrative
Agent hereunder include all of the Borrower's rights and title (i) to modify the
Contracts, the Other Contracts and the Leases, (ii) to terminate the Contracts,
the Other Contracts and the Leases, and (iii) to waive or release the
performance or observance of any obligation or condition of the Contracts, the
Other Contracts and the Leases; provided, however, that the Borrower shall have
the right to exercise these rights in a fashion consistent with this Agreement
prior to any Event of Default and that these rights shall not be exercised by
the Administrative Agent prior to the occurrence and during the continuance of
an Event of Default.
9. Remedies. Upon the occurrence and during the continuation
of an Event of Default the Banks and the Administrative Agent shall have such
rights and remedies as are set forth in the Loan Agreement and herein, all the
rights, powers and privileges of a secured party under the UCC of the State of
New York and any other applicable jurisdiction, and all other rights and
remedies available to the Banks and the Administrative Agent, or any of them, at
law or in equity. The Borrower covenants and agrees that any notification of
intended disposition of any Collateral, if such notice is required by law, shall
be deemed reasonably and properly given if given in the manner provided for in
Section 20 hereof at least ten (10) days prior to such disposition. Under such
circumstances, the Administrative Agent shall have the right to the appointment
of a receiver for the properties and assets of the Borrower, and the Borrower
hereby consents to such right and to such appointment and hereby waives any
objection the Borrower may have thereto and hereby waives the right to have a
bond or other security posted by the Administrative Agent or any other Person in
connection therewith. The Borrower agrees, after the occurrence and during the
continuation of an Event of Default, to take any actions that the Administrative
Agent may reasonably request in order to enable the Administrative Agent to
obtain and enjoy the full rights and benefits granted to the Administrative
Agent under this Agreement and the other Loan Documents. Without limiting the
generality of the foregoing, the Borrower shall, at the Borrower's cost and
expense, use its reasonable best efforts to assist in obtaining all approvals of
the FCC which are then required by law for or in connection with any action or
transaction contemplated by this Agreement or Article 9 of the
-6-
UCC as in effect in any applicable jurisdiction, and, at the Administrative
Agent's request, prepare, sign and file with the FCC the assignor's or
transferor's portion of any application or applications for consent to the
assignment of the Licenses or transfer of control thereof necessary or
appropriate under the FCC's rules for approval of any sale or transfer of the
Licenses in connection with the Administrative Agent's exercise of remedies
under this Agreement. The Administrative Agent shall have the right, in
connection with the issuance of any order for relief in a bankruptcy proceeding,
to petition the bankruptcy court for the transfer of control or assignment of
the Licenses to a receiver, trustee, transferee, or similar official or to any
purchaser of the Collateral pursuant to any public or private sale, foreclosure
or other exercise of remedies available to the Administrative Agent, all as
permitted by Applicable Law. All amounts realized or collected through the
exercise of remedies hereunder shall be applied to the Obligations as provided
in the Loan Agreement.
10. Notification of Account Debtors. Upon the occurrence and
during the continuation of an Event of Default, the Administrative Agent may
notify the account debtors that all payments with respect to Accounts are to be
paid directly to the Administrative Agent and any amount thereafter paid to the
Borrower shall be received in trust by the Borrower for the benefit of the
Administrative Agent and segregated from other funds of the Borrower and paid
over to the Administrative Agent in the form received (together with any
necessary endorsements).
11. Remedies of Administrative Agent. Upon the occurrence and
during the continuation of an Event of Default, and after written notice to the
Borrower, the Administrative Agent or its designee may proceed to perform any
and all of the obligations of the Borrower contained in any of the Contracts,
Other Contracts or Leases and exercise any and all rights of the Borrower
therein contained as fully as the Borrower itself could. The Borrower hereby
appoints the Administrative Agent its attorney-in-fact, with power of
substitution, to take such action, execute such documents, and perform such work
as the Administrative Agent may deem appropriate in exercise of the rights and
remedies granted the Banks and the Administrative Agent, or any of them, herein
or in any other Loan Document. The power of attorney granted herein is coupled
with an interest and shall be irrevocable.
12. Additional Remedies. Upon the occurrence and during the
continuation of an Event of Default, should the Borrower fail to perform or
observe any covenant or comply with any condition contained in any of the
Contracts, the Other Contracts or the Leases, then the Administrative Agent may,
but without obligation to do so and without releasing the Borrower from its
obligation to do so, and after written notice to the Borrower, perform such
covenant or condition and, to the extent
-7-
that the Administrative Agent shall incur any reasonable costs or pay any
expenses in connection therewith, including any reasonable costs or expenses of
litigation associated therewith, such costs, expenses or payments shall be
included in the Obligations secured hereby and shall bear interest from the
payment of such costs or expenses by the Administrative Agent at the Default
Rate. Neither the Administrative Agent nor any Bank shall be obliged to perform
or discharge any obligation of the Borrower under any of the Contracts, the
Other Contracts or the Leases.
13. Administrative Agent May Collect Accounts. The Borrower hereby
further appoints the Administrative Agent, effective upon the occurrence and
during continuation of an Event of Default as its attorney-in-fact, with power
of substitution, with authority to collect all Accounts, to endorse the name of
the Borrower on any note, acceptance, check, draft, money order or other
evidence of debt or of payment which constitutes a portion of the Collateral and
which may come into the possession of the Banks and the Administrative Agent, or
any of them, and generally to do such other things and acts in the name of the
Borrower with respect to the Collateral as are necessary or appropriate to
protect or enforce the rights hereunder of the Banks and the Administrative
Agent. The Borrower further authorizes the Administrative Agent, effective upon
the occurrence and during the continuation of an Event of Default, to compromise
and settle or to sell, assign or transfer or to ask, collect, receive or issue
any and all claims possessed by the Borrower which constitute a portion of the
Collateral, all in the name of the Borrower. After deducting all reasonable
expenses and charges (including the Administrative Agent's attorneys' fees) of
retaking, keeping, storing and selling the Collateral, the Administrative Agent
may apply the proceeds in payment of any of the Obligations in the order of
application set forth in the Loan Agreement. The power of attorney granted
herein is coupled with an interest and shall be irrevocable. The Borrower agrees
that if steps are taken by the Administrative Agent to enforce its rights
hereunder, or to realize upon any of the Collateral, the Borrower shall pay to
the Administrative Agent the amount of the Administrative Agent's reasonable
costs, including attorneys' fees, and the Borrower's obligation to pay such
amounts shall be deemed to be a part of the Obligations secured hereunder. Upon
the occurrence and during the continuation of an Event of Default, the Borrower
shall segregate all proceeds of any Collateral from other assets of the
Borrower.
14. Indemnification. The Borrower shall indemnify and hold harmless the
Administrative Agent and each Bank, and any other Person acting hereunder for
all losses, costs, damages, fees and expenses whatsoever associated with the
exercise of the powers of attorney granted herein and shall release the
Administrative Agent and each Bank, and any other Person acting hereunder from
all liability whatsoever for the exercise of the foregoing powers
-8-
of attorney and all actions taken pursuant thereto, except, in either event, in
the case of bad faith, gross negligence or willful misconduct by the Person
seeking indemnification.
15. Remedies Cumulative. The Borrower agrees that the rights of the
Banks and the Administrative Agent, or any of them, under this Agreement, the
Loan Agreement, any other Loan Document or any other contract or agreement now
or hereafter in existence among the Banks and the Administrative Agent and the
Borrower or any Subsidiary of the Borrower and the other obligors thereunder, or
any of them, shall be cumulative, and that the Administrative Agent and each
Bank may from time to time exercise such rights and such remedies as such Person
or Persons may have thereunder and under the laws of the United States or any
state, as applicable, in the manner and at the time that such Person or Persons
in its or their sole discretion desire, subject to the terms of such agreements.
The Borrower further expressly agrees that the Banks and the Administrative
Agent shall in no event be under any obligation to resort to any Collateral
secured hereby prior to exercising any other rights that the Banks and the
Administrative Agent, or any of them, may have against the Borrower or any
Subsidiary of the Borrower or any of their respective properties, nor shall the
Banks and the Administrative Agent, or any of them, be obliged to resort to any
other collateral or security for the Obligations, other than the Collateral,
prior to any exercise of the Administrative Agent's rights against the Borrower
and its property hereunder.
16. Obligations Commercial in Nature. The Borrower hereby acknowledges
that the Obligations arose out of a commercial transaction, and agrees that if
an Event of Default shall occur and be continuing, the Administrative Agent
shall, to the extent permitted by Applicable Law, have the right to immediate
possession without notice or a hearing, and hereby knowingly and intelligently
waives, to the extent permitted by Applicable Law, any and all rights it may
have to any notice and posting of a bond by the Banks and the Administrative
Agent, or any of them, prior to seizure by the Administrative Agent or any of
its transferees, assigns or successors in interest, of the Collateral or any
portion thereof.
17. Amendments and Waivers. No amendment, modification, waiver,
transfer or renewal, extension, assignment or termination of this Agreement or
of the Loan Agreement or of any other Loan Document, or of any instrument or
document executed and delivered by the Borrower or any other obligor to the
Banks and the Administrative Agent, or any of them, nor additional advances made
by the Banks and the Administrative Agent, or any of them, to the Borrower, nor
the taking of further security, nor the retaking or re-delivery or release of
the Collateral to the Borrower or any other collateral or guaranty by the Banks
and the Administrative Agent, or any of them, nor any lack of validity or
enforceability of any Loan Document or any term thereof nor any
-9-
other act of the Banks and the Administrative Agent, or any of them, shall
release the Borrower from any Obligation, except a release or discharge executed
in writing by the Administrative Agent in accordance with the Loan Agreement
with respect to such Obligation or upon full payment and satisfaction of all
Obligations and termination of the Commitment. Neither the Administrative Agent
nor any Bank shall by any act, delay, omission or otherwise, be deemed to have
waived any of its or their rights or remedies hereunder, unless such waiver is
in writing and signed by the Administrative Agent or one or more of the Banks in
accordance with the Loan Agreement and then only to the extent therein set
forth. A waiver by the Banks and the Administrative Agent, or any of them, of
any right or remedy on any occasion shall not be construed as a bar to the
exercise of any such right or remedy which any such Person would otherwise have
had on any other occasion.
18. Assignment. The Borrower hereby agrees that this Agreement or the
rights hereunder may, in the discretion of the Banks and the Administrative
Agent or any of them, as applicable, be assigned in whole or in part in
connection with any assignment of the Loan Agreement or the Obligations arising
thereunder, as permitted thereunder. In the event this Agreement or the rights
hereunder are so assigned by any of the Banks and the Administrative Agent, the
terms "Banks", or "Administrative Agent" wherever used herein shall be deemed,
as applicable, to refer to and include any such assignee.
19. Successors and Assigns. This Agreement shall apply to and bind the
respective successors and permitted assigns of the Borrower and inure to the
benefit of the successors and permitted assigns of the Borrower, the Banks and
the Administrative Agent.
20. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be given in the manner prescribed in
Section 11.1 of the Loan Agreement.
21. Governing Law. The provisions of this Agreement shall be construed
and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in the State of New York. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement among the Borrower and the Banks and the Administrative Agent
with respect to the matters addressed herein and may not be modified except by a
writing executed by the Administrative Agent and delivered to the Borrower.
22. Severability. If any paragraph or part thereof of this Agreement
shall for any reason be held or adjudged to be invalid, illegal or unenforceable
by any court of competent jurisdiction, such paragraph or part thereof so
adjudicated invalid, illegal or unenforceable shall be deemed separate, distinct
and independent,
-10-
and the remainder of this Agreement shall remain in full force and effect and
shall not be affected by such holding or adjudication.
23. FCC Consent. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Administrative Agent with
respect to the Licenses issued by the FCC unless and until all requirements of
Applicable Law, including, without limitation, any required approval under the
Communications Act, including without limitation the provision for ten (10) days
notice to the FCC required by 47 C.F.R. ss. 22.917(e), requiring the consent to
or approval of such action by the FCC or any governmental or other authority,
have been satisfied. The Borrower covenants that upon request of the
Administrative Agent it will cause to be filed such applications and take such
other action as may be reasonably requested by the Administrative Agent to
obtain the consent or approval of the FCC or any governmental or other authority
which has granted any License to the Borrower to any action contemplated by this
Agreement and to give effect to the Security Interest of the Administrative
Agent, including, without limitation, the execution of an application for
consent by the FCC to an assignment or transfer involving a change in ownership
or control pursuant to the provisions of the Communications Act.
24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
25. Changes in Applicable Law. The parties acknowledge their intent
that, upon the occurrence and during the continuation of an Event of Default,
the Administrative Agent shall receive, to the fullest extent permitted by
Applicable Law and governmental policy (including, without limitation, the
rules, regulations and policies of the FCC), all rights necessary or desirable
to obtain, use or sell the Collateral and to exercise all remedies available to
it under this Agreement, the UCC as in effect in any applicable jurisdiction, or
other Applicable Law. The parties further acknowledge and agree that, in the
event of changes in law or governmental policy occurring subsequent to the date
hereof that affect in any manner the Administrative Agent's rights of access to,
or use or sale of, the Collateral, or the procedures necessary to enable the
Administrative Agent to obtain such rights of access, use or sale, the
Administrative Agent and the Borrower shall amend this Agreement in such manner
as the Administrative Agent shall reasonably request in order to provide the
Administrative Agent such rights to the greatest extent possible consistent with
Applicable Law and governmental policy.
-11-
26. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of all the
Banks, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of all the Banks.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands by
and through their duly authorized representatives, as of the day and year first
written above.
BORROWER: AMERICAN TOWER SYSTEMS, INC., a
Delaware corporation
By:
Its:
[CORPORATE SEAL] Attest:
Its:
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
Its:
EXHIBITS
Exhibit A - Contracts
Exhibit B - Leases
Exhibit C - Licenses
SCHEDULES
Schedule 1 - List and Location of Inventory
and Equipment
BORROWER'S SECURITY AGREEMENT
SIGNATURE PAGE 1
EXHIBIT C
FORM OF CERTIFICATE OF FINANCIAL CONDITION
American Tower Systems, Inc., a Delaware corporation (the "Borrower"),
in connection with that certain Loan Agreement (the "Loan Agreement") of even
date herewith among the Borrower, the Banks (as defined in the Loan Agreement)
and Toronto Dominion (Texas), Inc., as administrative agent for the Banks (in
such capacity, the "Administrative Agent"), pursuant to which the Banks have
agreed to make loans to the Borrower (the "Loans") as evidenced by those certain
promissory notes of even date herewith by the Borrower to the order of the
Banks, hereby certifies to each of the foregoing Persons other than the Borrower
that:
1. The financial statements and all other documents relating to the
Borrower's present or projected future financial condition (together with
similar information relating to the Restricted Subsidiaries of the Borrower)
provided to the Administrative Agent and the Banks in connection with the Loan
Agreement, have been prepared by the undersigned or under the supervision of the
undersigned, with due diligence and in full awareness of the reliance of the
Banks on the information contained therein in reaching their decision to make
the Loans. Such financial statements (other than those relating to projected
financial condition) have been prepared in accordance with GAAP.
2. The Borrower, as a result of the Loans and any obligations incurred
in connection therewith and the other transactions contemplated by the Loan
Agreement, believes that the Borrower has not incurred and will not incur debts
beyond its ability to satisfy them as they mature, and will have a positive
operating cash flow after paying all of its anticipated indebtedness when due,
including the obligations due to the Banks under the Loan Agreement.
3. After giving effect to the Loans and the obligations incurred in
connection therewith and the other transactions contemplated by the Loan
Agreement and the Loan Documents, the Borrower (on a consolidated basis with its
Restricted Subsidiaries) anticipates that it will have sufficient proceeds from
its cash flow, the sale of assets in the ordinary course of business, the
proceeds of contemplated sales of assets not necessary for the Borrower's
business (and the business of its Restricted Subsidiaries), and future debt or
equity financings sufficient to pay cash interest expense and long-term
Indebtedness when due, whether at maturity or otherwise.
4. Immediately after giving effect to the transactions contemplated by
the Loan Agreement and the other Loan Documents, the fair saleable value of the
assets of the Borrower and its Restricted Subsidiaries (on a consolidated basis)
will exceed the aggregate amount of all Indebtedness then outstanding of the
Borrower and its Restricted Subsidiaries (on a consolidated basis).
5. Based on the present and anticipated needs for capital of the
businesses conducted, or anticipated to be conducted in the future by the
Borrower and its Restricted Subsidiaries, and after giving effect to the Loans,
the Borrower (on a consolidated basis with its Restricted Subsidiaries) will not
be left with unreasonably small capital to finance the needs and anticipated
needs of such businesses.
Capitalized terms used herein and not otherwise defined are used as
defined in the Loan Agreement.
IN WITNESS WHEREOF, the Borrower has caused the execution of this
Certificate and the affixation hereto of the seal of the Borrower this ____ day
of November 1996.
AMERICAN TOWER SYSTEMS, INC., a
Delaware corporation
By:
Its:
[CORPORATE SEAL]
Attest:
Its:
-2-
EXHIBIT D
FORM OF PROMISSORY NOTE
$____________________ As of __________ ____, ____
FOR VALUE RECEIVED, the undersigned, AMERICAN TOWER SYSTEMS, INC., a
Delaware corporation (the "Borrower"), promises to pay to the order of
____________________ (hereinafter, together with its successors and assigns,
called the "Bank"), in immediately available funds, at such place as is
designated in or pursuant to the Loan Agreement (as hereinafter defined), the
principal sum of ______________________ AND __/100s DOLLARS ($_________________)
of United States funds, or, if less, so much thereof as may from time to time be
advanced by the Bank to the Borrower and is outstanding hereunder, plus interest
as hereinafter provided. Such advances and repayments thereof may be endorsed
from time to time on the grid attached hereto, but the failure to make such
notations (or any error in such notation) shall not affect the obligation of the
Borrower to repay unpaid principal and interest hereunder.
Except as otherwise defined or limited herein, capitalized terms used
herein shall have the meanings ascribed to them in that certain Loan Agreement
dated as of ____________ ____, 1996 (as amended from time to time, the "Loan
Agreement") among the Borrower, the Bank, the other financial institutions party
thereto (together with the Bank, the "Banks") and Toronto Dominion (Texas),
Inc., as administrative agent for the Banks (in such capacity, the
"Administrative Agent").
The principal amount of this Note shall be paid in such amounts and at
such times as are set forth in Sections 2.5 and 2.7 of the Loan Agreement. A
final payment of all principal amounts and other Obligations then outstanding
hereunder shall be due and payable in full on the Maturity Date.
The Borrower shall be entitled to borrow, repay and reborrow hereunder
pursuant to the terms and conditions of the Loan Agreement. Prepayment of the
principal amount hereof may be made only as provided in the Loan Agreement. The
principal amount of each Advance shall be repaid on its Payment Date.
The Borrower hereby promises to pay interest on the unpaid principal
amount of the Loans outstanding hereunder as provided in the Loan Agreement.
Interest under this Note shall also be due and payable when this Note shall
become due (whether at maturity, by reason of acceleration or otherwise).
Overdue
principal and, to the extent permitted by Applicable Law, overdue interest,
shall bear interest at the Default Rate as provided in the Loan Agreement.
No provision of the Loan Agreement or this Note shall require the
payment or permit the collection of interest in excess of that permitted by
Applicable Law. If any excess amount of interest in such respect is provided
for, or shall be adjudicated to be so provided for, in connection with the Loans
outstanding hereunder, the provisions of this paragraph shall govern and
prevail, and neither the Borrower nor any sureties, guarantors, successors or
assigns of the Borrower shall be obligated to pay the excess amount of such
interest or any other excess sum paid for the use, forbearance, or detention of
sums loaned pursuant hereto. In the event the Borrower ever pays, or the Bank
ever receives, collects or applies as interest any such sum, such amount which
would be in excess of the maximum amount permitted by Applicable Law shall be
applied as a payment in the reduction of the principal, unless the Borrower
shall notify the Bank in writing that it elects to have such excess returned
forthwith; and, if the principal has been paid in full, any remaining excess
shall forthwith be returned to the Borrower. Because of the variable nature of
the rates of interest applicable to the Loans evidenced by this Note, the total
interest that will accrue hereon cannot be determined in advance. Neither the
Borrower nor the Bank intends for the Bank to contract for, charge or receive
usurious interest and, to prevent such an occurrence, any agreements which may
now or hereafter be in effect between the Borrower and the Bank regarding the
payment of fees to the Bank are hereby limited by the provisions of this
paragraph. To the extent not prohibited by Applicable Law, determination of the
legal maximum amount of interest shall at all times be made by amortizing,
prorating or allocating all interest at any time contracted for, charged or
received from the Borrower in connection with the portion of the Loans
outstanding hereunder until the Maturity Date, so that the actual rate of
interest on account of the Loans outstanding hereunder does not exceed the
maximum amount permitted under Applicable Law.
All parties now or hereafter liable with respect to this Note, whether
the Borrower, any guarantor, endorser or any other Person, hereby waive to the
extent permitted by Applicable Law presentment for payment, demand, notice of
nonpayment or dishonor, protest and notice of protest.
No delay or omission on the part of the Bank or any holder hereof in
exercising its rights under this Note, or delay or omission on the part of the
Bank, the Administrative Agent or the Banks collectively, in exercising its or
their rights under the Loan Agreement or any other Loan Documents, or course of
conduct relating thereto, shall operate as a waiver of such right or any
-2-
other right of the Bank or any holder hereof, nor shall any waiver by the Bank,
the Administrative Agent or the Banks collectively, or any holder hereof, of any
such right or rights on any one occasion be deemed a bar to, or waiver of, the
same right or rights on any future occasion.
The Borrower promises to pay all reasonable costs of collection,
including attorneys' fees, should this Note be collected by or through an
attorney-at-law or under advice therefrom.
Time is of the essence of this Note.
This Note evidences the Bank's portion of the Loans under, and is
entitled to the benefits and subject to the terms of, the Loan Agreement which
contains provisions with respect of the acceleration of the maturity of this
Note upon the happening of certain stated events and provisions for prepayment.
This Note is secured by and is also entitled to the benefits of the Security
Documents.
This Note shall be construed in accordance with and governed by the
internal laws of the State of New York applicable to contracts made and to be
performed in the State of New York.
[Remainder of Page Intentionally Left Blank]
-3-
IN WITNESS WHEREOF, the Borrower has executed this Note as of the day
and year first above written.
AMERICAN TOWER SYSTEMS, INC., a Delaware
corporation
By:
Its:
[CORPORATE SEAL]
Attest:
Its:
-4-
ADVANCES
Amount of Amount of Principal Notation
Date Advance Paid or Prepaid Made By
EXHIBIT E
FORM OF PARENT PLEDGE AGREEMENT
THIS PARENT PLEDGE AGREEMENT (this "Agreement"), entered into as of
this 22th day of November 1996, by and between American Tower Systems Holding
Corporation, a Delaware corporation (the "Pledgor"), and Toronto Dominion
(Texas), Inc., as administrative agent (the "Administrative Agent") for itself
and on behalf of the Banks.
W I T N E S S E T H:
WHEREAS, American Tower Systems, Inc., a Delaware corporation (the
"Borrower"), the Banks and the Administrative Agent are all parties to that
certain Loan Agreement dated as of even date herewith (the "Loan Agreement");
and
WHEREAS, the Pledgor is the sole stockholder of the Borrower and, as
such, will derive substantial direct and indirect economic benefit from the
making of the Loans; and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Pledgor is required to execute and deliver this Agreement; and
WHEREAS, to secure the payment and performance of Borrower arising
under the Loan Agreement, the Pledgor and the Administrative Agent (on behalf of
itself and the Banks) have agreed that the shares of capital stock (the "Stock")
owned by the Pledgor in each of the Subsidiaries of the Pledgor listed on
Schedule 1 attached hereto (the "Subsidiaries") shall be pledged by the Pledgor
to the Administrative Agent (on behalf of itself and the Banks) to secure the
Obligations (as defined below);
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Warranty. The Pledgor hereby represents and warrants to the
Administrative Agent and the Banks that, except for the security interest
created hereby, the Pledgor owns the Stock, which constitutes the percentage of
the issued and outstanding stock of the Subsidiaries as set forth on Schedule 1
attached hereto, free and clear of all Liens, that the Stock is duly
issued, fully paid and non-assessable, and that the Pledgor has the unencumbered
right to pledge the Stock. In addition, Pledgor represents and covenants as
follows: (1) the Stock represents all of Pledgor's shares of capital stock in
any Subsidiary; (2) upon possession and retention of the Stock by the
Administrative Agent, the Administrative Agent shall have a valid and perfected
first priority security interest in the Stock, securing the payment of the
Obligations; and (3) except as noted on Schedule 2 attached hereto, the Stock
represents all the outstanding shares of stock issued by any Subsidiary of the
Pledgor.
2. Security Interest. Subject to the provisions of Section 13 hereof,
the Pledgor hereby unconditionally grants and assigns to the Administrative
Agent, for itself and on behalf of the Banks, and their respective successors
and assigns, a continuing security interest in and security title to the Stock
and any other shares of capital stock of any Subsidiary of the Pledgor obtained
in the future, and in each case, all certificates representing such shares, all
rights, options, warrants, stock or other securities or other property which may
hereafter be received, receivable or distributed in respect of the Stock,
together with all proceeds of the foregoing, including, without limitation, all
dividends, cash, notes, securities or other property from time to time acquired,
receivable or otherwise distributed in respect of, or in exchange for, the
foregoing, all of which shall constitute "Stock" hereunder. The Pledgor has
delivered to and deposited with the Administrative Agent herewith all of its
right, title and interest in and to the Stock, together with certificates
representing the Stock, and undated stock powers endorsed in blank, as security
for the payment and performance of all of the obligations of the Pledgor and any
other obligor to the Administrative Agent, the Banks, or any of them, under this
Agreement and any extensions, renewals or amendments of any of the foregoing,
however created, acquired, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due (the
"Obligations"); it being the intention of the parties hereto that beneficial
ownership of the Stock, including, without limitation, all voting, consensual
and dividend rights, shall remain in the Pledgor until the occurrence and during
continuance of an Event of Default and until the Administrative Agent shall
notify the Pledgor of the Administrative Agent's exercise of voting and dividend
rights to the Stock pursuant to Section 9 of this Agreement.
3. Additional Shares. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification, readjustment,
or other change is declared or made in the
- 2 -
capital structure of any Subsidiary, or any new stock is issued by such
Subsidiary, all new, substituted, and additional shares shall be issued
to the Pledgor and shall be promptly delivered to the Administrative
Agent, together with undated stock powers endorsed in blank by the
Pledgor, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement; and
(b) any subscriptions, warrants or any other rights or options
shall be issued in connection with the Stock, all new stock or other
securities acquired through such subscriptions, warrants, rights or
options by the Pledgor shall be promptly delivered to the
Administrative Agent, together with undated Stock powers endorsed in
blank, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement.
4. Default. In the event of the occurrence of an Event of Default and
so long as any such Event of Default is continuing, subject, however, to Section
13 hereof, the Administrative Agent may sell or otherwise dispose of the Stock
at a public or private sale or make other commercially reasonable disposition of
the Stock or any portion thereof after fifteen (15) days' notice to the Pledgor
and the Administrative Agent and the Banks, or any of them, may purchase the
Stock or any portion thereof at any public sale. The proceeds of the public or
private sale or other disposition shall be applied first to the costs of the
Administrative Agent incurred in connection with the sale, expressly including,
without limitation, any costs under Section 7 hereof, and then as provided in
the Loan Agreement. In the event the proceeds of the sale or other disposition
of the Stock are insufficient to satisfy the Obligations, the Pledgor shall
remain liable for any such deficiency. Pledgor waives, to the extent permitted
by Applicable Law, the rights of equity of redemption, appraisal, notice of
acceptance, presentment, demand and marshalling, to the extent applicable.
5. Additional Rights of Secured Party. In addition to its rights and
privileges under this Agreement, the Administrative Agent, on behalf of itself
and the Banks, shall have all the rights, powers and privileges of a secured
party under the Uniform Commercial Code as in effect in any applicable
jurisdiction and other Applicable Law.
6. Return of Stock to the Pledgor. Upon payment in full of all
principal and interest on the Notes, full performance by the Borrower of all
covenants, undertakings and obligations under the Loan Agreement and the other
Loan Documents, and satisfaction in full of any other Obligations, other than
the Obligations which survive the termination of the Loan Agreement as provided
in Section 11.16 of the Loan Agreement, and after such time as the Banks shall
have no obligation to make any further Advances
- 3 -
to the Borrower, this Agreement shall terminate and the Administrative Agent
shall return the remaining Stock and all rights received by the Administrative
Agent as a result of its possessory interest in the Stock to the Pledgor.
7. Disposition of Stock by Administrative Agent. The Stock is not
registered or qualified under the various Federal or state securities laws of
the United States and disposition thereof after an Event of Default may be
restricted to one or more private (instead of public) sales in view of the lack
of such registration. The Pledgor understands that upon such disposition, the
Administrative Agent may approach only a restricted number of potential
purchasers and further understands that a sale under such circumstances may
yield a lower price for the Stock than if the Stock were registered and
qualified pursuant to Federal and state securities laws and sold on the open
market. The Pledgor, therefore, agrees that:
(a) if the Administrative Agent shall, pursuant to the terms
of this Agreement, sell or cause the Stock or any portion thereof to be
sold at a private sale, the Administrative Agent shall have the right
to rely upon the advice and opinion of any national brokerage or
investment firm having recognized expertise and experience in
connection with shares of communications tower companies (but shall not
be obligated to seek such advice and the failure to do so shall not be
considered in determining the commercial reasonableness of such action)
as to the best manner in which to expose the Stock for sale and as to
the best price reasonably obtainable at the private sale thereof; and
(b) that such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner absent manifest error.
8. Pledgor's Obligations Absolute. The obligations of the Pledgor under
this Agreement shall be direct and immediate and not conditional or contingent
upon the pursuit of any remedies against the Borrower or any other Person, nor
against other security or liens available to the Administrative Agent or any
Bank. The Pledgor hereby waives any right to require that an action be brought
against any other Person or to require that resort be had to any security or to
any balance of any deposit account or credit on the books of the Administrative
Agent or any of the Banks in favor of any other Person prior to the exercise of
remedies hereunder, or to require action hereunder prior to resort by the
Administrative Agent to any other security or collateral for the Obligations. No
amendment, modification, waiver, transfer or renewal, extension, assignment or
termination of this Agreement or of the Loan Agreement or of any other Loan
Document, or of any instrument or document executed and delivered
- 4 -
by the Pledgor or any other obligor with respect to the Obligations to the Banks
and the Administrative Agent, or any of them, nor additional advances made by
the Banks and the Administrative Agent, or any of them, to the Borrower, nor the
taking of further security, nor the retaking or re-delivery or release of the
Collateral to the Borrower or any other Person or any other collateral or
guaranty to the Borrower or any other Person by the Banks and the Administrative
Agent, or any of them, nor any lack of validity or enforceability of any Loan
Document or any term thereof, nor any other act of the Banks and the
Administrative Agent, or any of them, shall release the Pledgor from any
Obligation, except a release or discharge executed in writing by the
Administrative Agent in accordance with the Loan Agreement with respect to such
Obligation or upon full payment and satisfaction of all Obligations. Neither the
Administrative Agent nor any Bank shall, by any act, delay, omission or
otherwise, be deemed to have waived any of its or their rights or remedies
hereunder, unless such waiver is in writing and signed by the Administrative
Agent in accordance with the Loan Agreement and then only to the extent therein
set forth. A waiver by the Banks and the Administrative Agent, or any of them,
of any right or remedy on any occasion shall not be construed as a bar to the
exercise of any such right or remedy which any such Person would otherwise have
had on any other occasion.
9. Voting Rights.
(a) For so long as any Obligations remain unpaid, after and
during the continuation of an Event of Default, but subject to the
provisions of Section 13 hereof, (i) the Administrative Agent may, upon
fifteen (15) days' prior written notice to the Pledgor of its intention
to do so, exercise all voting rights, and all other ownership or
consensual rights of the Stock, but under no circumstances is the
Administrative Agent obligated by the terms of this Agreement to
exercise such rights, and (ii) the Pledgor hereby appoints the
Administrative Agent, which appointment shall be effective on the
fifteenth (15th) day following the giving of notice by the
Administrative Agent as provided in the foregoing Section 9(a)(i), the
Pledgor's true and lawful attorney-in-fact and IRREVOCABLE PROXY to
vote the Stock in any manner the Administrative Agent deems advisable
for or against all matters submitted or which may be submitted to a
vote of shareholders. The power-of-attorney granted hereby is coupled
with an interest and shall be irrevocable.
(b) For so long as the Pledgor shall have the right to vote
the Stock, the Pledgor covenants and agrees that it will not, without
the prior written consent of the Administrative Agent, vote or take any
consensual action with respect to the Stock which would constitute an
Event of Default.
- 5 -
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing, and shall be given in the fashion set forth in
Section 11.1 of the Loan Agreement, and with respect to the Pledgor, at the
address for the Borrower set forth in or otherwise provided pursuant to Section
11.1 of the Loan Agreement.
11. Binding Agreement. The provisions of this Agreement shall be
construed and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in the State of New York. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement between the parties with respect to the matters addressed
herein and may not be modified except by a writing executed by the
Administrative Agent and the Pledgor and delivered by the Administrative Agent
to the Pledgor.
12. Severability. If any paragraph or part thereof shall for any reason
be held or adjudged to be invalid, illegal or unenforceable by any court of
competent jurisdiction, such paragraph or part thereof so adjudicated invalid,
illegal or unenforceable shall be deemed separate, distinct and independent, and
the remainder of this Agreement shall remain in full force and effect and shall
not be affected by such holding or adjudication.
13. FCC Compliance. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
which may require the consent or approval of the FCC, and the proxy granted in
Section 9(a) hereof shall not become effective, unless and until all
requirements of the Communications Act, requiring the consent to or approval of
such action by the FCC have been satisfied. The Pledgor covenants that,
following and during the continuance of an Event of Default, upon request of the
Administrative Agent, it will cause to be filed such applications and take such
other action as may be reasonably requested by the Administrative Agent to
obtain consent or approval of the FCC to any action contemplated by this
Agreement and to give effect to the security interest of the Administrative
Agent, including, without limitation, the execution of an application for
consent by the FCC to an assignment or transfer involving a change in ownership
or control pursuant to the provisions of the Communications Act.
14. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
15. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by
- 6 -
the "Administrative Agent" shall be a reference to the Administrative Agent for
the benefit of all the Banks, and each action taken or right exercised hereunder
shall be deemed to have been so taken or exercised by the Administrative Agent
for the benefit of and on behalf of all the Banks.
[Remainder of Page Intentionally Left Blank]
- 7 -
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
PLEDGOR: AMERICAN TOWER SYSTEMS HOLDING
CORPORATION, a Delaware corporation
By:
[CORPORATE SEAL] Title:
Attest:
Title:
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
Title:
Schedule 1 - Shares Pledged Pursuant to Pledge Agreement
Schedule 2 - Outstanding Shares of Stock
PARENT PLEDGE AGREEMENT
SIGNATURE PAGE 1
EXHIBIT F
FORM OF REQUEST FOR ADVANCE
______________________________, the duly elected and qualified
____________________________ of American Tower Systems, Inc., a Delaware
corporation (the "Borrower"), in connection with that certain Loan Agreement (as
in effect on the date hereof, the "Loan Agreement"), dated as of November 22,
1996, among the Borrower, the Banks (as defined in the Loan Agreement) and
Toronto-Dominion (Texas), Inc., as administrative agent for the Banks (in such
capacity, the "Administrative Agent"), hereby certifies to each of the foregoing
Persons other than the Borrower that:
1. The Borrower hereby requests an Advance in the amount of $__________
to be made on ____________ __, _____, under the Commitment. Such Advance shall
be a [Base Rate/LIBOR] Advance. [The Interest Period for the LIBOR Advance shall
be _____________ month(s).] The proceeds of the Advance should be wired as set
forth on Schedule 1 attached hereto. The foregoing instructions shall be
irrevocable.
2. All of the representations and warranties of the Borrower made under
the Loan Agreement (including, without limitation, all representations and
warranties with respect to the Borrower's Subsidiaries) and the other Loan
Documents are as of the date hereof, and will be as of the date of such Advance,
true and correct in all material aspects both before and after giving effect to
the application of the proceeds of the Advance of the Loans in connection with
which this Request for Advance is given, and after giving effect to any updates
to information provided to the Banks in accordance with the terms of the Loan
Agreement.
3. There does not exist, as of this date, and there will not exist after
giving effect to the Advance requested in this Request for Advance, any Default
under the Loan Agreement.
4. All Necessary Authorizations have been obtained or made, are in full
force and effect and are not subject to any pending or threatened reversal or
cancellation.
5. There has occurred no event having a Materially Adverse Effect since
____________ ___, _____.
6. On the date of such Advance, after giving effect to the Advance
requested hereby, the Borrower shall be in compliance on a pro forma basis with
the covenants set forth in Sections 7.8, 7.9 and 7.10 of the Loan Agreement, and
Schedule 2 attached hereto sets forth calculations demonstrating such
compliance.
7. All other conditions precedent to the Advance requested hereby set
forth in Section 3.2 of the Loan Agreement have been satisfied.
Capitalized terms used in this Request for Advance and not otherwise
defined are used as defined in the Loan Agreement.
IN WITNESS WHEREOF, the Borrower, acting through an Authorized Signatory,
has signed this Request for Advance, as of the ______ day of ____________, 19__.
AMERICAN TOWER SYSTEMS, INC., a Delaware
corporation
By:
Its:
Schedule 1 - Wiring Instructions
Schedule 2 - Compliance Calculations
-2-
EXHIBIT G
FORM OF SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (the "Guaranty"), made as of the ___ day of
__________, 19__, by ____________, a ___________ (the "Guarantor"), in favor of
Toronto Dominion (Texas), Inc., as administrative agent (the "Administrative
Agent") for the Banks (as defined in the Loan Agreement described below).
W I T N E S S E T H:
WHEREAS, American Tower Systems Inc., a Delaware corporation (the
"Borrower"), the Banks, and the Administrative Agent are all parties to that
certain Loan Agreement dated as of November 22, 1996 (as in effect on the date
hereof, the "Loan Agreement"); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Guarantor is
required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor is a Restricted Subsidiary of the Borrower; and
WHEREAS, the Borrower and the Guarantor are mutually dependent on each
other in the conduct of their respective businesses as an integrated operation,
and the Borrower has as one of its corporate purposes the obtaining of financing
needed from time to time by the Guarantor, with the Borrower's ability to obtain
such financing being dependent, in part, on the successful operations of and the
properties owned by the Guarantor; and
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Guaranty directly benefit, and are within the corporate
purposes and in the best interests of, the Guarantor; and
WHEREAS, as a condition to the extension of the Loans by the Banks, the
Guarantor has agreed to execute this Guaranty guaranteeing the payment and
performance by the Borrower of its obligations and covenants under the Notes,
the Loan Agreement and the other Loan Documents (the Loan Agreement, the Notes
and the other Loan Documents, as executed on the date hereof and as they may be
amended, modified or extended from time to time being hereinafter referred to as
the "Guaranteed Agreements"); and
WHEREAS, capitalized terms used herein and not otherwise defined shall be
used as defined in the Loan Agreement;
NOW, THEREFORE, in consideration of the above premises, Ten Dollars
($10.00) in hand paid and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, subject to the provisions of
Section 7 hereof, the Guarantor hereby unconditionally guarantees to the Banks
and the Administrative Agent full and prompt payment and performance when due
whether at maturity, by acceleration or otherwise of all Obligations. Each
Obligation shall rank pari passu with each other Obligation.
The Guarantor hereby further agrees, for the benefit of the Banks and the
Administrative Agent, that:
1. Obligations Several. Regardless of whether any proposed guarantor or
any other Person or Persons is, are or shall become in any other way responsible
to the Banks and the Administrative Agent, or any of them, for or in respect of
the Obligations or any part thereof, and regardless of whether or not any Person
or Persons now or hereafter responsible to the Banks and the Administrative
Agent, or any of them, for the Obligations or any part thereof, whether under
this Guaranty or otherwise, shall cease to be so liable, the Guarantor hereby
declares and agrees that this Guaranty is and shall continue to be a several
obligation, shall be a continuing guaranty and shall be operative and binding,
and that the Guarantor shall have no right of subrogation with respect to this
Guaranty.
2. Guaranty Final. Upon the execution and delivery of this Guaranty to
the Administrative Agent, this Guaranty shall be deemed to be finally executed
and delivered by the Guarantor and shall not be subject to or affected by any
promise or condition affecting or limiting the Guarantor's liability (other than
as expressly set forth in Section 7 hereof), and no statement, representation,
agreement or promise on the part of the Banks, the Administrative Agent, the
Borrower, or any of them, or any officer, employee or agent thereof, unless
contained herein forms any part of this Guaranty or has induced the making
hereof or shall be deemed in any way to affect the Guarantor's liability
hereunder.
3. Amendment and Waiver. No alteration or waiver of this Guaranty or of
any of its terms, provisions or conditions shall be binding upon the Persons
against whom enforcement is sought unless made in writing and signed by an
authorized officer of such Person.
4. Dealings with Borrower. The Banks and the Administrative Agent, or any
of them, may, from time to time, without exonerating or releasing the Guarantor
in any way under this Guaranty, (i) take such further or other security or
securities for the Obligations or any part thereof as the Banks
-2-
and the Administrative Agent, or any of them, may deem proper, consistent with
the Loan Agreement, or (ii) release, discharge, abandon or otherwise deal with
or fail to deal with any guarantor of the Obligations or any security or
securities therefor or any part thereof now or hereafter held by the Banks and
the Administrative Agent, or any of them, or (iii) consistent with the Loan
Agreement, amend, modify, extend, accelerate or waive in any manner any of the
provisions, terms, or conditions of the Guaranteed Agreements, all as the Banks
and the Administrative Agent, or any of them, may consider expedient or
appropriate in their sole discretion. Without limiting the generality of the
foregoing, or of Paragraph 5 hereof, it is understood that the Banks and the
Administrative Agent, or any of them, may, without exonerating or releasing the
Guarantor, give up, or modify or abstain from perfecting or taking advantage of
any security for the Obligations and accept or make any compositions or
arrangements, and realize upon any security for the Obligations when, and in
such manner, as the Banks and the Administrative Agent, or any of them, may deem
expedient, consistent with the Loan Agreement, all without notice to the
Guarantor, except as required by Applicable Law.
5. Guaranty Unconditional. The Guarantor acknowledges and agrees that no
change in the nature or terms of the Obligations or any of the Guaranteed
Agreements, or other agreements, instruments or contracts evidencing, related to
or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of the Guarantor pursuant to this Guaranty;
it being the purpose and intent of the Guarantor, the Banks and the
Administrative Agent that the covenants, agreements and all liabilities and
obligations of the Guarantor hereunder are absolute, unconditional and
irrevocable under any and all circumstances. Without limiting the generality of
the foregoing, the Guarantor agrees that until each and every one of the
covenants and agreements of this Guaranty is fully performed, the Guarantor's
undertakings hereunder shall not be released, in whole or in part, by any action
or thing which might, but for this paragraph of this Guaranty, be deemed a legal
or equitable discharge of a surety or guarantor, or by reason of any waiver,
omission of the Banks and the Administrative Agent, or any of them, or their
failure to proceed promptly or otherwise, or by reason of any action taken or
omitted by the Banks and the Administrative Agent, or any of them, whether or
not such action or failure to act varies or increases the risk of, or affects
the rights or remedies of, the Guarantor or by reason of any further dealings
between the Borrower, the Banks and the Administrative Agent, or any of them, or
any other guarantor or surety, and the Guarantor, to the extent permitted by
Applicable Law, hereby expressly waives and surrenders any defense to its
liability hereunder, or any right of counterclaim or offset of any nature or
description which it may have or which may exist based upon, and shall be deemed
to have consented to,
-3-
any of the foregoing acts, omissions, things, agreements or waivers.
6. Set-off. The Banks and the Administrative Agent, or any of them, may,
without demand or notice of any kind upon or to the Guarantor, at any time or
from time to time when any amount shall be due and payable hereunder by the
Guarantor, if the Borrower shall not have timely paid its Obligations, set off
and appropriate any property, balances, credit accounts or moneys of the
Guarantor (other than those held in a trust) in the possession of the Banks and
the Administrative Agent, or any of them, or under the control of any of them
for any purpose, which property, balances, credit accounts or moneys shall
thereupon be turned over and remitted to the Administrative Agent, to be held
and applied to the Obligations by the Administrative Agent in accordance with
the Loan Agreement, and the Guarantor hereby grants to the Banks and the
Administrative Agent, a security interest in all such property. The
Administrative Agent shall give written notice to the Borrower of the exercise
of any of the foregoing rights within one (1) Business Day following the
exercise thereof.
7. Maximum Guaranteed Amount. The creation or existence from time to time
of Obligations in excess of the amount committed to or outstanding on the date
of this Guaranty is hereby authorized by the Guarantor, without notice to the
Guarantor, and shall in no way impair or affect this Guaranty or the rights of
the Banks and the Administrative Agent, or any of them, herein. Anything in this
Guaranty to be contrary notwithstanding, it is the intention of the Guarantor,
the Banks and the Administrative Agent, that the Guarantor's obligations
hereunder shall be, but not in excess of, the Maximum Guaranteed Amount. The
"Maximum Guaranteed Amount" shall mean the greater of (a) the amount of economic
benefit received (directly or indirectly) by the Guarantor pursuant to the Loan
Agreement and the other Loan Documents, and (b) the maximum amount which could
be paid out by the Guarantor without rendering this Guaranty void or voidable
under Applicable Law including, without limitation, (i) Title 11 of the United
States Code, as amended, and (ii) applicable state law regarding fraudulent
conveyances.
8. Bankruptcy. Upon the bankruptcy or winding up or other distribution of
assets of the Borrower or any Subsidiary of the Borrower (other than the
Guarantor) or of any surety or guarantor for the Obligations, the rights of the
Banks and the Administrative Agent, or any of them, against the Guarantor shall
not be affected or impaired by the omission of the Banks and the Administrative
Agent, or any of them, to prove its or their claim, as appropriate, or to prove
its or their full claim, as appropriate, and the Banks and the Administrative
Agent may prove such claims as they see fit and may refrain from proving any
claim and in their respective discretion they may value as they see fit or
refrain from valuing any security held by the Banks
-4-
and the Administrative Agent, or any of them, without in any way releasing,
reducing or otherwise affecting the liability to the Banks and the
Administrative Agent of the Guarantor.
9. Application of Payments. Any amount received by the Banks and the
Administrative Agent, or any of them, from whatsoever source and applied toward
the payment of the Obligations shall be applied in such order of application as
is set forth in the Loan Agreement.
10. Waivers by Guarantor. The Guarantor hereby expressly waives, to the
extent permitted by Applicable Law: (a) notice of acceptance of this Guaranty,
(b) notice of the existence or creation of all or any of the Obligations, (c)
presentment, demand, notice of dishonor, protest, and all other notices
whatsoever, (d) all diligence in collection or protection of or realization upon
the Obligations or any part thereof, any obligation hereunder, or any security
for any of the foregoing and (e) all rights of subrogation, indemnification,
contribution and reimbursement against the Borrower, all rights to enforce any
remedy the Banks and the Administrative Agent, or any of them, may have against
the Borrower and any benefit of, or right to participate in, any collateral or
security now or hereinafter held by the Banks and the Administrative Agent, or
any of them, in respect of the Obligations, even upon payment in full of the
Obligations. Any money received by the Guarantor in violation of this Section
shall be held in trust by the Guarantor for the benefit of the Banks and the
Administrative Agent. If a claim is ever made upon the Banks and the
Administrative Agent, or any of them, for the repayment or recovery of any
amount or amounts received by any of them in payment of any of the Obligations
and such Person repays all or part of such amount by reason of (a) any judgment,
decree, or order of any court or administrative body having jurisdiction over
such Person or any of its property, or (b) any good faith settlement or
compromise of any such claim effected by such Person with any such claimant,
including the Borrower, then in such event the Guarantor agrees that any such
judgment, decree, order, settlement, or compromise shall be binding upon the
Guarantor, notwithstanding any revocation hereof or the cancellation of any
promissory note or other instrument evidencing any of the Obligations, and the
Guarantor shall be and remain obligated to such Person hereunder for the amount
so repaid or recovered to the same extent as if such amount had never originally
been received by such Person.
11. Assignment by Banks or Administrative Agent. To the extent permitted
under the Loan Agreement, the Banks and the Administrative Agent may each, and
without notice of any kind, except as otherwise required by the Loan Agreement,
sell, assign or transfer all or any of the Obligations, and in such event each
and every immediate and successive assignee, transferee, or holder of all or any
of the Obligations, shall have the right to enforce this Guaranty, by suit or
otherwise, for the benefit of
-5-
such assignee, transferee or holder as fully as if such assignee, transferee or
holder were herein by name specifically given such rights, powers and benefits.
12. Remedies Cumulative. No delay by the Banks and the Administrative
Agent, or any of them, in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the Banks and the
Administrative Agent, or any of them, of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or remedy.
No action by the Banks and the Administrative Agent, or any of them, permitted
hereunder shall in any way impair or affect this Guaranty. For the purpose of
this Guaranty, the Obligations shall include, without limitation, all
Obligations of the Borrower to the Banks and the Administrative Agent
notwithstanding any right or power of any third party, individually or in the
name of the Borrower or any other Person, to assert any claim or defense as to
the invalidity or unenforceability of any such Obligation, and no such claim or
defense shall impair or affect the obligations of the Guarantor hereunder.
13. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor, its successors and assigns and inure to the benefit of the successors
and assigns of the Guarantor, the Banks and the Administrative Agent. The
Guarantor shall not assign its rights or obligations under this Guaranty without
the consent of the Administrative Agent and all the Banks, nor shall the
Guarantor amend this Guaranty, without the consent of the Administrative Agent
and the Majority Banks.
14. Miscellaneous. This is a Guaranty of payment and not of collection. In
the event of a demand upon the Guarantor under this Guaranty, the Guarantor
shall be held and bound to the Banks and the Administrative Agent directly as
debtor in respect of the payment of the amounts hereby guaranteed. All
reasonable costs and expenses, including attorneys' fees and expenses, incurred
by the Banks and the Administrative Agent, or any of them, in obtaining
performance of or collecting payments due under this Guaranty shall be deemed
part of the Obligations guaranteed hereby. Any notice or demand which the Banks
and the Administrative Agent, or any of them, may wish to give shall be served
upon the Guarantor in the fashion prescribed for notices in Section 11.1 of the
Loan Agreement in care of the Borrower at the address for the Borrower set forth
in or otherwise provided pursuant to Section 11.1 of the Loan Agreement, and the
notice so sent shall be deemed to be served as set forth in Section 11.1 of the
Loan Agreement.
15. Loans Benefit Guarantor. The Guarantor expressly represents and
acknowledges that any financial accommodations by the Banks and the
Administrative Agent, or any of them, to the Borrower, including, without
limitation the extension of the
-6-
Loans, are and will be of direct interest, benefit and advantage to the
Guarantor.
16. Solvency. The Guarantor expressly represents and warrants that as of
the date hereof and after giving effect to the transactions contemplated by the
Loan Documents (i) the property of the Guarantor, at a fair valuation, will
exceed its debt; (ii) the capital of the Guarantor will not be unreasonably
small to conduct its business; (iii) the Guarantor will not have incurred debts,
or have intended to incur debts, beyond its ability to pay such debts as they
mature; and (iv) the present fair salable value of the assets of the Guarantor
will be materially greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured. For
purposes of this Section 16, "debt" means any liability on a claim, and "claim"
means (a) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (b) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
17. Visits and Inspections. The Guarantor covenants and agrees that so
long as any amount is owing on account of Obligations or otherwise pursuant to
this Guaranty, the Guarantor shall permit representatives of the Banks and the
Administrative Agent, or any of them, to visit and inspect properties of the
Guarantor during normal business hours after reasonable notice, inspect the
Guarantor's books and records and discuss with the principal officers of the
Guarantor its businesses, assets, liabilities, financial positions, results of
operations and business prospects.
18. Governing Law. This Guaranty shall be construed in accordance with and
governed by the internal laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
19. Jurisdiction and Venue. If any action or proceeding shall be brought
by the Administrative Agent in order to enforce any right or remedy under this
Guaranty, the Guarantor hereby consents to the jurisdiction of any state or
federal court of competent jurisdiction sitting within the area comprising the
Southern District of New York on the date of this Guaranty. The Guarantor hereby
agrees, to the extent permitted by Applicable Law that service of the summons
and complaint and all other process which may be served in any such suit, action
or proceeding may be effected by mailing by registered mail a copy of such
process to the offices of the Borrower, as set forth in or otherwise provided
pursuant to Section 11.1 of the Loan Agreement, and that personal service of
process shall not be
-7-
required. Nothing herein shall be construed to prohibit service of process by
any other method permitted by law, or the bringing of any suit, action or
proceeding in any other jurisdiction. The Guarantor agrees that final judgment
in such suit, action or proceeding shall be conclusive and may be enforced in
any other jurisdiction by suit on the judgment or in any other manner provided
by Applicable Law.
20. Waiver of Jury Trial. The Guarantor waives any right to a trial by
jury in any proceeding arising out of this Guaranty.
21. Time of the Essence. Time is of the essence with regard to the
Guarantor's performance of its obligations hereunder.
22. Administrative Agent. Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Administrative Agent" shall
be a reference to the Administrative Agent for the benefit of itself and all the
Banks, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of itself and all the Banks.
23. Ratifications. The Guarantor hereby ratifies and affirms each
representation, warranty, covenant and other agreement made on its behalf by the
Borrower in the Loan Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-8-
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and sealed as of the date first above written.
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
Its:
GUARANTOR: _______________, a _______________
By:
Its:
[CORPORATE SEAL]
Attest:
Its:
SUBSIDIARY GUARANTY
Signature Page 1
EXHIBIT H
FORM OF SUBSIDIARY PLEDGE AGREEMENT
THIS SUBSIDIARY PLEDGE AGREEMENT (the "Agreement"), entered into as of this
___ day of October, 1996, by and between ___________________, a __________ (the
"Pledgor") and Toronto Dominion (Texas), Inc., as administrative agent (the
"Administrative Agent") for itself and on behalf of the Banks.
W I T N E S S E T H:
WHEREAS, American Tower Systems, Inc., a Delaware corporation (the
"Borrower"), the Banks and the Administrative Agent are all parties to that
certain Loan Agreement dated as of November 22, 1996 (as in effect on the date
hereof, the "Loan Agreement"); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Pledgor is
required to execute and deliver this Agreement; and
WHEREAS, the Pledgor is a Restricted Subsidiary of the Borrower and is
engaged in the business of owning and operating communications tower facilities
as an integrated operation with the Borrower and its other Subsidiaries; and
WHEREAS, the Pledgor has determined that its execution, delivery and
performance of this Agreement directly benefit, and are within the corporate
purposes and in the best interests of, the Pledgor; and
WHEREAS, to secure the payment and performance of, among other things, the
obligations of the Pledgor arising from that certain Subsidiary Guaranty of even
date herewith (the "Subsidiary Guaranty"), the Pledgor and the Administrative
Agent (on behalf of itself and the Banks) have agreed that the shares of capital
stock (the "Stock") owned by the Pledgor in each of the Subsidiaries of the
Pledgor listed on Schedule 1 attached hereto (the "Subsidiaries") shall be
pledged by the Pledgor to the Administrative Agent (on behalf of itself and the
Banks) to secure the Obligations (as defined below);
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Warranty. The Pledgor hereby represents and warrants to the
Administrative Agent and the Banks that, except for the security interest
created hereby, the Pledgor owns the Stock, which constitutes the percentage of
the issued and outstanding stock of the Subsidiaries as set forth on Schedule 1
attached hereto, free and clear of all Liens, that the Stock is duly issued,
fully paid and non-assessable, and that the Pledgor has the unencumbered right
to pledge the Stock. In addition, Pledgor represents and covenants as follows:
(1) the Stock represents all of Pledgor's shares of capital stock in any
Subsidiary; (2) upon possession and retention of the Stock by the Administrative
Agent, the Administrative Agent shall have a valid and perfected first priority
security interest in the Stock, securing the payment of the Obligations; and (3)
except as noted on Schedule 2 attached hereto, the Stock represents all the
outstanding shares of stock issued by any Subsidiary of the Pledgor.
2. Security Interest. Subject to the provisions of Section 13 hereof, the
Pledgor hereby unconditionally grants and assigns to the Administrative Agent,
for itself and on behalf of the Banks, and their respective successors and
assigns, a continuing security interest in and security title to the Stock and
any other shares of capital stock of any Subsidiary of the Pledgor obtained in
the future, and in each case, all certificates representing such shares, all
rights, options, warrants, stock or other securities or other property which may
hereafter be received, receivable or distributed in respect of the Stock,
together with all proceeds of the foregoing, including, without limitation, all
dividends, cash, notes, securities or other property from time to time acquired,
receivable or otherwise distributed in respect of, or in exchange for, the
foregoing, all of which shall constitute "Stock" hereunder. The Pledgor has
delivered to and deposited with the Administrative Agent herewith all of its
right, title and interest in and to the Stock, together with certificates
representing the Stock, and undated stock powers endorsed in blank, as security
for the payment and performance of all of the obligations of the Pledgor and any
other obligor to the Administrative Agent, the Banks, or any of them, under this
Agreement and the Subsidiary Guaranty and any extensions, renewals or amendments
of any of the foregoing, however created, acquired, arising or evidenced,
whether direct or indirect, absolute or contingent, now or hereafter existing,
or due or to become due (the "Obligations"); it being the intention of the
parties hereto that beneficial ownership of the Stock, including, without
limitation, all voting, consensual and dividend rights, shall remain in the
Pledgor until the occurrence and during continuance of an Event of Default and
until the Administrative Agent shall notify the Pledgor of the Administrative
Agent's exercise of voting and dividend rights to the Stock pursuant to Section
9 of this Agreement.
- 2 -
3. Additional Shares. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification, readjustment,
or other change is declared or made in the capital structure of any
Subsidiary, or any new stock is issued by such Subsidiary, all new,
substituted, and additional shares shall be issued to the Pledgor and shall
be promptly delivered to the Administrative Agent, together with undated
stock powers endorsed in blank by the Pledgor, and shall thereupon
constitute Stock to be held by the Administrative Agent under the terms of
this Agreement; and
(b) any subscriptions, warrants or any other rights or options shall
be issued in connection with the Stock, all new stock or other securities
acquired through such subscriptions, warrants, rights or options by the
Pledgor shall be promptly delivered to the Administrative Agent, together
with undated Stock powers endorsed in blank, and shall thereupon constitute
Stock to be held by the Administrative Agent under the terms of this
Agreement.
4. Default. In the event of the occurrence of an Event of Default and so
long as any such Event of Default is continuing, subject, however, to Section 13
hereof, the Administrative Agent may sell or otherwise dispose of the Stock at a
public or private sale or make other commercially reasonable disposition of the
Stock or any portion thereof after fifteen (15) days' notice to the Pledgor and
the Administrative Agent and the Banks, or any of them, may purchase the Stock
or any portion thereof at any public sale. The proceeds of the public or private
sale or other disposition shall be applied first to the costs of the
Administrative Agent incurred in connection with the sale, expressly including,
without limitation, any costs under Section 7 hereof, and then as provided in
the Loan Agreement. In the event the proceeds of the sale or other disposition
of the Stock are insufficient to satisfy the Obligations, the Pledgor shall
remain liable for any such deficiency. Pledgor waives, to the extent permitted
by Applicable Law, the rights of equity of redemption, appraisal, notice of
acceptance, presentment, demand and marshalling, to the extent applicable.
5. Additional Rights of Secured Party. In addition to its rights and
privileges under this Agreement, the Administrative Agent, on behalf of itself
and the Banks, shall have all the rights, powers and privileges of a secured
party under the Uniform Commercial Code as in effect in any applicable
jurisdiction and other Applicable Law.
6. Return of Stock to the Pledgor. Upon payment in full of all principal
and interest on the Notes, full performance by the Borrower of all covenants,
undertakings and obligations under
- 3 -
the Loan Agreement and the other Loan Documents, and satisfaction in full of any
other Obligations, other than the Obligations which survive the termination of
the Loan Agreement as provided in Section 11.16 of the Loan Agreement, and after
such time as the Banks shall have no obligation to make any further Advances to
the Borrower, this Agreement shall terminate and the Administrative Agent shall
return the remaining Stock and all rights received by the Administrative Agent
as a result of its possessory interest in the Stock to the Pledgor.
7. Disposition of Stock by Administrative Agent. The Stock is not
registered or qualified under the various Federal or state securities laws of
the United States and disposition thereof after an Event of Default may be
restricted to one or more private (instead of public) sales in view of the lack
of such registration. The Pledgor understands that upon such disposition, the
Administrative Agent may approach only a restricted number of potential
purchasers and further understands that a sale under such circumstances may
yield a lower price for the Stock than if the Stock were registered and
qualified pursuant to Federal and state securities laws and sold on the open
market. The Pledgor, therefore, agrees that:
(a) if the Administrative Agent shall, pursuant to the terms of this
Agreement, sell or cause the Stock or any portion thereof to be sold at a
private sale, the Administrative Agent shall have the right to rely upon
the advice and opinion of any national brokerage or investment firm having
recognized expertise and experience in connection with shares of
communications tower companies (but shall not be obligated to seek such
advice and the failure to do so shall not be considered in determining the
commercial reasonableness of such action) as to the best manner in which to
expose the Stock for sale and as to the best price reasonably obtainable at
the private sale thereof; and
(b) that such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner absent manifest error.
8. Pledgor's Obligations Absolute. The obligations of the Pledgor under
this Agreement shall be direct and immediate and not conditional or contingent
upon the pursuit of any remedies against the Borrower or any other Person, nor
against other security or liens available to the Administrative Agent or any
Bank. The Pledgor hereby waives any right to require that an action be brought
against any other Person or to require that resort be had to any security or to
any balance of any deposit account or credit on the books of the Administrative
Agent or any of the Banks in favor of any other Person prior to the exercise of
remedies hereunder, or to require action hereunder prior to
- 4 -
resort by the Administrative Agent to any other security or collateral for the
Obligations. No amendment, modification, waiver, transfer or renewal, extension,
assignment or termination of this Agreement or of the Loan Agreement or of any
other Loan Document, or of any instrument or document executed and delivered by
the Pledgor or any other obligor with respect to the Obligations to the Banks
and the Administrative Agent, or any of them, nor additional advances made by
the Banks and the Administrative Agent, or any of them, to the Borrower, nor the
taking of further security, nor the retaking or re-delivery or release of the
Collateral to the Borrower or any other person or any other collateral or
guaranty by the Banks and the Administrative Agent, or any of them, nor any lack
of validity or enforceability of any Loan Document or any term thereof, nor any
other act of the Banks and the Administrative Agent, or any of them, shall
release the Pledgor from any Obligation, except a release or discharge executed
in writing by the Administrative Agent in accordance with the Loan Agreement
with respect to such Obligation or upon full payment and satisfaction of all
Obligations. Neither the Administrative Agent nor any Bank shall, by any act,
delay, omission or otherwise, be deemed to have waived any of its or their
rights or remedies hereunder, unless such waiver is in writing and signed by the
Administrative Agent in accordance with the Loan Agreement and then only to the
extent therein set forth. A waiver by the Banks and the Administrative Agent, or
any of them, of any right or remedy on any occasion shall not be construed as a
bar to the exercise of any such right or remedy which any such Person would
otherwise have had on any other occasion.
9. Voting Rights.
(a) For so long as any Obligations remain unpaid, after and during
the continuation of an Event of Default, but subject to the provisions of
Section 13 hereof, (i) the Administrative Agent may, upon fifteen (15)
days' prior written notice to the Pledgor of its intention to do so,
exercise all voting rights, and all other ownership or consensual rights of
the Stock, but under no circumstances is the Administrative Agent obligated
by the terms of this Agreement to exercise such rights, and (ii) the
Pledgor hereby appoints the Administrative Agent, which appointment shall
be effective on the fifteenth (15th) day following the giving of notice by
the Administrative Agent as provided in the foregoing Section 9(a)(i), the
Pledgor's true and lawful attorney-in-fact and IRREVOCABLE PROXY to vote
the Stock in any manner the Administrative Agent deems advisable for or
against all matters submitted or which may be submitted to a vote of
shareholders. The power-of-attorney granted hereby is coupled with an
interest and shall be irrevocable.
- 5 -
(b) For so long as the Pledgor shall have the right to vote the
Stock, the Pledgor covenants and agrees that it will not, without the prior
written consent of the Administrative Agent, vote or take any consensual
action with respect to the Stock which would constitute an Event of
Default.
10. Notices. All notices and other communications required or permitted
hereunder shall be in writing, and shall be given in the fashion set forth in
Section 11.1 of the Loan Agreement, and with respect to the Pledgor, at the
address for the Borrower set forth in or otherwise provided pursuant to Section
11.1 of the Loan Agreement.
11. Binding Agreement. The provisions of this Agreement shall be construed
and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in the State of New York. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement between the parties with respect to the matters addressed
herein and may not be modified except by a writing executed by the
Administrative Agent and the Pledgor and delivered by the Administrative Agent
to the Pledgor.
12. Severability. If any paragraph or part thereof shall for any reason be
held or adjudged to be invalid, illegal or unenforceable by any court of
competent jurisdiction, such paragraph or part thereof so adjudicated invalid,
illegal or unenforceable shall be deemed separate, distinct and independent, and
the remainder of this Agreement shall remain in full force and effect and shall
not be affected by such holding or adjudication.
13. FCC Compliance. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Administrative Agent which may
require the consent or approval of the FCC, and the proxy granted in Section
9(a) hereof shall not become effective, unless and until all requirements of the
Communications Act, requiring the consent to or approval of such action by the
FCC have been satisfied. The Pledgor covenants that, following and during the
continuance of an Event of Default, upon request of the Administrative Agent, it
will cause to be filed such applications and take such other action as may be
reasonably requested by the Administrative Agent to obtain consent or approval
of the FCC to any action contemplated by this Agreement and to give effect to
the security interest of the Administrative Agent, including, without
limitation, the execution of an application for consent by the FCC to an
assignment or transfer involving a change in ownership or control pursuant to
the provisions of the Communications Act.
- 6 -
14. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original, but all such separate
counterparts shall together constitute but one and the same instrument.
15. Administrative Agent. Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Administrative Agent" shall
be a reference to the Administrative Agent for the benefit of all the Banks, and
each action taken or right exercised hereunder shall be deemed to have been so
taken or exercised by the Administrative Agent for the benefit of and on behalf
of all the Banks.
[Remainder of Page Intentionally Left Blank]
- 7 -
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
PLEDGOR: ________________, a ____________
By:
[CORPORATE SEAL] Title:
Attest:
Title:
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS),
INC., as Administrative Agent
By:
Title:
Schedule 1 - Shares Pledged Pursuant to Pledge Agreement
Schedule 2 - Outstanding Shares of Stock
SUBSIDIARY PLEDGE AGREEMENT
SIGNATURE PAGE 1
EXHIBIT I
FORM OF SUBSIDIARY SECURITY AGREEMENT
THIS SUBSIDIARY SECURITY AGREEMENT (this "Agreement") dated as of the
___ day of _________, 1996, by and between __________________, a
____________(the "Subsidiary"), and Toronto Dominion (Texas), Inc., as
administrative agent (the "Administrative Agent") for itself and on behalf of
the Banks (as
defined in the Loan Agreement defined below).
W I T N E S S E T H:
WHEREAS, American Tower Systems, Inc., a Delaware corporation (the
"Borrower"), the Banks and the Administrative Agent are all parties to that
certain Loan Agreement dated as of November 22, 1996 (as in effect on the date
hereof the "Loan Agreement"); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Subsidiary is
required to execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Grant of Security Interest. Subject to the provisions of Sections 23
and 25 hereof, and to the extent permitted by Applicable Law in the case of the
Licenses, the Subsidiary, as a direct Subsidiary of the Borrower, hereby
unconditionally grants and assigns to the Administrative Agent (for itself and
on behalf of the Banks) a continuing security interest in and security title to
(hereinafter referred to as the "Security Interest") all of its property and
assets and all additions thereto and replacements thereof, and all other
property whether now owned or hereafter created, acquired or reacquired by the
Subsidiary, including:
Inventory
All of the Subsidiary's inventory and supplies of whatsoever nature and
kind and wheresoever situated, including, without limitation, raw materials,
components, work in process, finished goods, goods in transit and packing and
shipping materials,
accretions and accessions thereto, trust receipts and similar documents covering
the same products (the "Inventory");
Accounts
All right to payment for goods sold or leased or for services rendered,
expressly including, without limitation, in connection with owning, leasing,
managing and operating communications tower facilities, whether or not earned by
performance, including, without limitation, all agreements with and sums due
from customers and other Persons, and all books and records recording,
evidencing or relating to such rights or any part thereof (the "Accounts");
Equipment
All machinery, equipment and supplies (installed and uninstalled) not
included in Inventory above, including motor vehicles and accretions and
accessions thereto; and expressly including, without limitation, towers,
antennas and equipment located at communications tower facilities; any
distribution systems and all components thereof, including, without limitation,
hardware, cables, fiber optic cables, switches, CODECs, computer equipment,
amplifiers, and associated devices; and any other equipment used in connection
with the Subsidiary's business (the "Equipment");
Contracts and Leases
All assignable (a) construction contracts, subscriber contracts,
customer service agreements, management agreements, rights of way, easements,
pole attachment agreements, transmission capacity agreements, public utility
contracts and other agreements to which the Subsidiary is a party, whether now
existing or hereafter arising, including without limitation those listed on
Exhibit A hereto (the "Contracts"); (b) lease agreements for personal property
to which the Subsidiary is a party, whether now existing or hereafter arising,
including, without limitation, those listed on Exhibit B hereto (the "Leases");
and (c) other contracts and contractual rights, remedies or provisions now
existing or hereafter arising in favor of the Subsidiary (the "Other
Contracts");
General Intangibles
All general intangibles including personal property not included above,
such as, without limitation, all goodwill, trademarks, trademark applications,
trade names, trade secrets, industrial designs, other industrial or intellectual
property or rights therein, whether under license or otherwise, claims for tax
refunds, and tax refund amounts (the "Intangibles");
-2-
Licenses
To the extent permitted by Applicable Law and subject to Sections 23
and 25 hereof, all franchises, Licenses, permits and operating rights
authorizing or relating to the Subsidiary's rights to operate and maintain
communications tower facilities or similar business including, without
limitation, the Licenses, all as more particularly described on Exhibit C
attached hereto;
Furniture and Fixtures
All furniture and fixtures in which the Subsidiary has an interest (the
"Furniture and Fixtures");
Miscellaneous Items
All goods, chattel paper, documents, instruments, supplies, choses in
action, claims, money, deposits, certificates of deposit, stock or share
certificates, and licenses and other rights in intellectual property not
included above (the "Miscellaneous Items"); and
Proceeds
All proceeds of any of the above, and all proceeds of any loss of,
damage to or destruction of the above, whether insured or not insured, and all
other proceeds of any sale, lease or other disposition of any property or
interest therein referred to above including, without limitation, the proceeds
of the sale of any License, together with all proceeds of any policies of
insurance covering any or all of the above, the proceeds of any award in
condemnation with respect to any of the property of the Subsidiary, any rebates
or refunds, whether for taxes or otherwise, together with all proceeds of any
such proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other Contracts, Leases,
Intangibles, Licenses, Furniture and Fixtures, Miscellaneous Items, and
Proceeds, as described above, are hereinafter collectively referred to as the
"Collateral."
This Agreement and the Security Interest secure payment and performance
of all obligations of the Subsidiary to the Banks and the Administrative Agent,
or any of them, under that certain Subsidiary Guaranty of even date given by the
Subsidiary for the benefit of the Banks and the Administrative Agent, and any
extensions, renewals or amendments thereto, however created, acquired, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due, (all of the foregoing obligations
being hereinafter collectively referred to as the "Obligations").
-3-
2. Further Assurances. The Subsidiary hereby authorizes the
Administrative Agent to file such financing statements and such other documents
as the Administrative Agent may reasonably require to protect or perfect the
interest of the Banks and the Administrative Agent in the Collateral, and the
Subsidiary further irrevocably appoints the Administrative Agent as its
attorney-in-fact, with a power of attorney to execute on behalf of the
Subsidiary such UCC financing statement forms as the Administrative Agent may
from time to time reasonably deem necessary or desirable to protect or perfect
such interest in the Collateral. Such power of attorney is coupled with an
interest and shall be irrevocable. In addition, the Subsidiary agrees to do,
execute and deliver or cause to be done, executed and delivered all such further
acts, documents and things as the Administrative Agent may reasonably require
for the purpose of perfecting or protecting the rights of the Banks and the
Administrative Agent hereunder or otherwise giving effect to this Agreement, all
promptly upon request therefor.
3. Representations and Warranties. The Subsidiary represents and
warrants to the Banks and the Administrative Agent that:
(a) the execution of this Agreement and the fulfillment of the
terms hereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, the Subsidiary's Articles
of Incorporation or By-Laws as currently in effect, or any order, rule
or regulation applicable to the Subsidiary of any court or of any
Federal or state regulatory body or administrative agency or other
governmental body having jurisdiction over the Subsidiary, or result in
the termination or cancellation or breach of any indenture, mortgage,
deed of trust, deed to secure debt, lease or other agreement or
instrument to which the Subsidiary is a party or by which it is bound
or affected;
(b) the Subsidiary has taken all necessary corporate action to
authorize the execution and delivery of this Agreement, and this
Agreement, when executed and delivered, will be the valid and binding
obligation of the Subsidiary enforceable in accordance with its terms,
subject only to the following qualifications:
(i) certain equitable remedies are discretionary and,
in particular, may not be available where damages are
considered an adequate remedy at law,
(ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and
other similar laws affecting enforcement of creditors' rights
generally (insofar as any such law
-4-
relates to the bankruptcy, insolvency or similar event of the
Subsidiary), and
(iii) enforcement as to the Licenses is limited by FCC
rules and regulations restricting the transfer of such
Licenses.
(c) Exhibit A attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of the Contracts in
effect on the date hereof which provide for aggregate payments over the
life of each such Contract in excess of $100,000 or which are otherwise
material to the Subsidiary, and the Subsidiary will furnish copies
thereof to the Banks and the Administrative Agent upon the request of
the Administrative Agent;
(d) Exhibit B attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of all Leases
providing for aggregate payments over the life of any single Lease in
excess of $250,000, to which the Subsidiary is a party in effect on the
date hereof, and the Subsidiary will furnish copies thereof to the
Banks and the Administrative Agent upon the request of the
Administrative Agent; and
(e) Exhibit C attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of the Licenses in
effect on the date hereof.
4. Representations and Warranties Concerning Collateral. The Subsidiary
further represents and warrants that (a) the Security Interest in the Collateral
granted hereunder shall constitute at all times a valid first priority security
interest (subject only to Permitted Liens), vested in the Administrative Agent,
in and upon the Collateral, free of any Liens except for Permitted Liens, (b)
the location of the Inventory and the Equipment is as set forth on Schedule 1
hereto, and (c) none of the Accounts are represented by promissory notes or
other instruments. The Subsidiary shall take or cause to be taken such acts and
actions as shall be necessary or appropriate to assure that the Security
Interest in the Collateral shall not become subordinate or junior to the
security interests, liens or claims of any other Person, and that the Collateral
shall not otherwise be or become subject to any Lien, except for Permitted
Liens.
5. Location of Books and Records. The Subsidiary further represents and
warrants that it now keeps all of its records concerning its Accounts,
Contracts, Leases, Other Contracts, and Intangibles at its chief executive
office, except as listed on Exhibit D hereto. The Subsidiary covenants and
agrees that it shall not keep any of such records at any other address, unless
written notice thereof is given to the Administrative Agent at least thirty (30)
days prior to the creation of any new address
-5-
for the keeping of such records. The Subsidiary further agrees that it shall
promptly advise the Administrative Agent, in writing making reference to this
Section 4 of this Agreement, of the opening of any material new place of
business, the closing of any existing material place of business, or any change
in the location of the place where it keeps the Collateral or of its chief
executive officer.
6. Collateral Not Fixtures. The parties intend that, to the extent
permitted by Applicable Law, the Collateral shall remain personal property
irrespective of the manner of its attachment or affixation to realty.
7. Covenants Regarding Collateral. Any and all injury to, or loss or
destruction of, the Collateral shall be at the Subsidiary's risk, and shall not
release the Subsidiary from its obligations hereunder. The Subsidiary agrees not
to sell, transfer, assign, dispose of, mortgage, grant a security interest in,
or encumber any of the Collateral except as permitted under the Loan Agreement.
The Subsidiary agrees to maintain in force such insurance with respect to the
Collateral as is required under the Loan Agreement. The Subsidiary agrees to pay
all required taxes, liens, and assessments upon the Collateral, its use or
operation, as required under the Loan Agreement. The Subsidiary further agrees
that the Administrative Agent may, but shall in no event be obligated to,
following written notice to the Subsidiary, insure any of the Collateral in such
form and amount as the Administrative Agent may deem necessary or desirable if
the Subsidiary fails to obtain insurance as required by the Loan Agreement, and
that the Administrative Agent may pay or discharge any taxes if the Subsidiary
fails to pay such taxes as required by the Loan Agreement or Liens (which are
not Permitted Liens) on any of the Collateral, and the Subsidiary agrees to pay
any such sum so expended by the Administrative Agent, with interest at the
Default Rate, and such amounts shall be deemed to be a part of the Obligations
secured by the Collateral under the terms of this Agreement.
8. Covenants Regarding Contracts, Other Contracts and Leases. The
Subsidiary shall (a) fulfill, perform and observe each and every material
condition and covenant contained in any of the Contracts, the Other Contracts or
the Leases, other than those being contested in good faith or unless the other
party thereto is in default, (b) give prompt notice to the Administrative Agent
of any claim of material default under any Contract, Other Contract or Lease
given to the Subsidiary or by the Subsidiary other than those which in the
Subsidiary's reasonable business judgment are no longer in the best interest of
the Subsidiary to enforce and which have been previously approved by the
Administrative Agent, (c) at the sole cost and expense of the Subsidiary,
enforce the performance and observance of each and every material covenant and
condition of the Contracts, the Other Contracts and the Leases to which it is a
-6-
party other than those which in the Subsidiary's reasonable business judgment
are no longer in the best interest of the Subsidiary to enforce and which have
been previously approved by the Administrative Agent, and (d) appear in and
defend any action growing out of or in any manner connected with any Contract,
Other Contract or Lease to which it is a party. The rights and interests granted
to the Administrative Agent hereunder include all of the Subsidiary's rights and
title (i) to modify the Contracts, the Other Contracts and the Leases, (ii) to
terminate the Contracts, the Other Contracts and the Leases, and (iii) to waive
or release the performance or observance of any obligation or condition of the
Contracts, the Other Contracts and the Leases; provided, however, that the
Subsidiary shall have the right to exercise these rights in a fashion consistent
with this Agreement prior to any Event of Default and that these rights shall
not be exercised by the Administrative Agent prior to the occurrence and during
the continuation of an Event of Default.
9. Remedies. Upon the occurrence and during the continuation of an
Event of Default, the Banks and the Administrative Agent shall have such rights
and remedies as are set forth in the Loan Agreement, the other Loan Documents
and herein, all the rights, powers and privileges of a secured party under the
Uniform Commercial Code of the State of New York and any other applicable
jurisdiction, and all other rights and remedies available to the Banks and the
Administrative Agent, or any of them, at law or in equity. The Subsidiary
covenants and agrees that any notification of intended disposition of any
Collateral, if such notice is required by law, shall be deemed reasonably and
properly given if given in the manner provided for in Section 20 hereof at least
ten (10) days prior to such disposition. Under such circumstances, the
Administrative Agent shall have the right to the appointment of a receiver for
the properties and assets of the Subsidiary, and the Subsidiary hereby consents
to such rights and to such appointment and hereby waives any objection it may
have thereto and hereby waives the right to have a bond or other security posted
by the Administrative Agent or any other Person in connection therewith. The
Subsidiary agrees, after the occurrence of an Event of Default, to take any
actions that the Administrative Agent may reasonably request in order to enable
the Administrative Agent to obtain and enjoy the full rights and benefits
granted to the Administrative Agent under this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, the Subsidiary
shall, at the Subsidiary's cost and expense, use its reasonable best efforts to
assist in obtaining all approvals of the FCC which are then required by law for
or in connection with any action or transaction contemplated by this Agreement
or Article 9 of the Uniform Commercial Code as in effect in any applicable
jurisdiction, and, at the Administrative Agent's request, prepare, sign and file
with the FCC the assignor's or transferor's portion of any application or
applications for consent to the assignment of the Licenses or transfer of
control
-7-
thereof necessary or appropriate under the FCC's rules for approval of any sale
or transfer of the Administrative Agent's remedies under this Agreement. The
Administrative Agent shall have the right, in connection with the issuance of
any order for relief in a bankruptcy proceeding, to petition the bankruptcy
court for the transfer of control or assignment of the Licenses to a receiver,
trustee, transferee, or similar official or to any purchaser of the Collateral
pursuant to any public or private sale, foreclosure or other exercise of
remedies available to the Administrative Agent, all as permitted by Applicable
Law. All amounts realized or collected through the exercise of remedies
hereunder shall be applied to the Obligations as provided in the Loan Agreement.
10. Notification of Account Debtors. Upon the occurrence and during the
continuation of an Event of Default, the Administrative Agent may notify the
account debtors that all payments with respect to Accounts are to be paid
directly to the Administrative Agent and any amount thereafter paid to the
Subsidiary shall be received in trust by the Subsidiary for the benefit of the
Administrative Agent and segregated from other funds of the Subsidiary and paid
over to the Administrative Agent in the form received (together with any
necessary endorsements).
11. Remedies of Administrative Agent. Upon the occurrence of an Event
of Default and during the continuation thereof, the Administrative Agent or its
designee may proceed to perform any and all of the obligations of the Subsidiary
contained in any of the Contracts, Other Contracts or Leases and exercise any
and all rights of the Subsidiary therein contained as fully as the Subsidiary
itself could. The Subsidiary hereby appoints the Administrative Agent its
attorney-in-fact, with power of substitution, to take such action, execute such
documents, and perform such work as the Administrative Agent may deem
appropriate in exercise of the rights and remedies granted the Banks and the
Administrative Agent, or any of them, herein or in any other Loan Document
following written notice to the Subsidiary. The powers herein granted shall
include, without limitation, powers to: (a) xxx on the Contracts, the Other
Contracts or the Leases; (b) seek all governmental approvals (other than FCC
approvals) required for the operation of the business of the Subsidiary; (c)
modify or terminate the Contracts, the Other Contracts and the Leases; and (d)
waive or release the performance or observance of any obligation under any of
the Contracts, Other Contracts or Leases. The power of attorney granted herein
is coupled with an interest and shall be irrevocable.
12. Additional Remedies. Upon the occurrence of an Event of Default and
during the continuation thereof, should the Subsidiary fail to perform or
observe any covenant or comply with any condition contained in any of the
Contracts, the Other Contracts or the Leases, then following written notice to
the
-8-
Subsidiary, the Administrative Agent may, but without obligation to do so and
without releasing the Subsidiary from its obligation to do so, perform such
covenant or condition and, to the extent that the Administrative Agent shall
incur any reasonable costs or pay any expenses in connection therewith,
including any reasonable costs or expenses of litigation associated therewith,
such costs, expenses or payments shall be included in the Obligations secured
hereby and shall bear interest from the payment of such costs or expenses by the
Administrative Agent at the Default Rate. Neither the Administrative Agent nor
any Bank shall be obliged to perform or discharge any obligation of the
Subsidiary under any of the Contracts, the Other Contracts or the Leases, and,
except as may result from the bad faith, gross negligence or willful misconduct
of the Person seeking indemnification, the Subsidiary agrees to indemnify and
hold the Administrative Agent and each Bank harmless against any and all
liability, loss or damage which any such Person may incur under any of the
Contracts, the Other Contracts or the Leases or under or by reason of this
Agreement, and any and all claims and demands whatsoever which may be asserted
against the Subsidiary by reason of an act of the Administrative Agent or any
Bank under any of the terms of this Agreement or under the Contracts, the Other
Contracts or the Leases.
13. Administrative Agent May Collect Accounts. The Subsidiary hereby
further appoints the Administrative Agent as its attorney-in-fact, with power of
substitution, with authority to collect all Accounts, to endorse the name of the
Subsidiary on any note, acceptance, check, draft, money order or other evidence
of debt or of payment which constitutes a portion of the Collateral and which
may come into the possession of the Banks and the Administrative Agent, or any
of them, and generally to do such other things and acts in the name of the
Subsidiary with respect to the Collateral as are necessary or appropriate to
protect or enforce the rights hereunder of the Banks and the Administrative
Agent. The Subsidiary further authorizes the Administrative Agent, effective
upon the occurrence of an Event of Default and during the continuation thereof,
to compromise and settle or to sell, assign or transfer or to ask, collect,
receive or issue any and all claims possessed by the Subsidiary which constitute
a portion of the Collateral, all in the name of the Subsidiary. After deducting
all reasonable expenses and charges (including the Administrative Agent's
attorneys' fees) of retaking, keeping, storing and selling the Collateral, the
Administrative Agent may apply the proceeds in payment of any of the Obligations
in the order of application set forth in the Loan Agreement. The power of
attorney granted herein is coupled with an interest and shall be irrevocable.
The Subsidiary agrees that a failure to so notify the Administrative Agent shall
be a waiver and bar to any subsequent claim for any such property. The
Subsidiary agrees that if steps are taken by the Administrative Agent to enforce
its rights hereunder, or to realize upon any of the Collateral, the Subsidiary
shall pay to the Administrative
-9-
Agent the amount of the Administrative Agent's reasonable costs, including
attorneys' fees, and the Subsidiary's obligation to pay such amounts shall be
deemed to be a part of the Obligations secured hereunder. Upon the occurrence
and during the continuation of an Event of Default, the Subsidiary shall
segregate all proceeds of any Collateral from other assets of the Subsidiary.
14. Indemnification. The Subsidiary shall indemnify and hold harmless
the Administrative Agent, each Bank, and any other Person acting hereunder for
all losses, costs, damages, fees and expenses whatsoever associated with the
exercise of the powers of attorney granted herein and shall release the
Administrative Agent, each Bank, and any other Person acting hereunder from all
liability whatsoever for the exercise of the foregoing powers of attorney and
all actions taken pursuant thereto, except, in either event, in the case of bad
faith, gross negligence or willful misconduct by the Person seeking
indemnification.
15. Remedies Cumulative. The Subsidiary agrees that the rights of the
Banks and the Administrative Agent, or any of them, under this Agreement, the
Loan Agreement, any other Loan Document, or any other contract or agreement now
or hereafter in existence among the Banks and the Administrative Agent and the
Subsidiary and the other obligors thereunder, or any of them, shall be
cumulative, and that the Administrative Agent and each Bank may from time to
time exercise such rights and such remedies as such Person or Persons may have
thereunder and under the laws of the United States or any state, as applicable,
in the manner and at the time that such Person or Persons in its or their sole
discretion desire, subject to the terms of such agreements. The Subsidiary
further expressly agrees that the Banks and the Administrative Agent shall in no
event be under any obligation to resort to any Collateral secured hereby prior
to exercising any other rights that the Banks and the Administrative Agent, or
any of them, may have against the Subsidiary or its property, nor shall the
Banks and the Administrative Agent be obliged to resort to any other collateral
or security for the Obligations, other than the Collateral, prior to any
exercise of the Administrative Agent's rights against the Subsidiary and its
property hereunder.
16. Obligations Commercial in Nature. The Subsidiary hereby
acknowledges that the Obligations arose out of a commercial transaction, and
agrees that if an Event of Default shall occur and be continuing, the
Administrative Agent shall, to the extent permitted by Applicable Law, have the
right to immediate possession without notice or a hearing, and hereby knowingly
and intelligently waives, to the extent permitted by Applicable Law, any and all
rights it may have to any notice and posting of a bond by the Banks and the
Administrative Agent, or any of them, prior to seizure by the Administrative
Agent or any of its transferees, assigns or successors in interest of the
Collateral or any portion thereof.
-10-
17. Amendments and Waivers. No amendment, modification, waiver,
transfer or renewal, extension, assignment or termination of this Agreement or
of the Loan Agreement or of any other Loan Document, or of any instrument or
document executed and delivered by the Subsidiary or any other obligor to the
Banks and the Administrative Agent, or any of them, nor additional advances made
by the Banks and the Administrative Agent, or any of them, to the Borrower, nor
the taking of further security, nor the retaking or re-delivery or release of
the Collateral to the Subsidiary by the Banks and the Administrative Agent, or
any of them, nor any lack of validity or enforceability of any Loan Document or
any term thereof, nor any other act of the Banks and the Administrative Agent,
or any of them, shall release the Subsidiary from any Obligation, except a
release or discharge executed in writing by the Administrative Agent in
accordance with the Loan Agreement with respect to such Obligation or upon full
payment and satisfaction of all Obligations and termination of the Commitment.
Neither the Administrative Agent nor any Bank shall by any act, delay, omission
or otherwise, be deemed to have waived any of its or their rights or remedies
hereunder, unless such waiver is in writing and signed by the Administrative
Agent in accordance with the Loan Agreement and then only to the extent therein
set forth. A waiver by the Banks and the Administrative Agent, or any of them,
of any right or remedy on any occasion shall not be construed as a bar to the
exercise of any such right or remedy which any such Person would otherwise have
had on any other occasion.
18. Assignment. The Subsidiary agrees that this Agreement or the rights
hereunder may in the discretion of the Banks and the Administrative Agent, or
any of them, as applicable, be assigned in whole or in part in connection with
any assignment of the Loan Agreement or the Obligations arising thereunder, as
permitted thereunder. In the event this Agreement or the rights hereunder are so
assigned by any of the Banks and the Administrative Agent, the terms "Banks" or
"Administrative Agent" wherever used herein shall be deemed, as applicable, to
refer to and include any such assignee.
19. Successors and Assigns. This Agreement shall apply to and bind the
respective successors and permitted assigns of the Subsidiary and inure to the
benefit of the successors and permitted assigns of the Subsidiary, the Banks and
the Administrative Agent.
20. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be given in a fashion prescribed in
Section 11.1 of the Loan Agreement with respect to the Banks and the
Administrative Agent, and in the fashion prescribed in Section 11.1 of the Loan
Agreement with respect to the Subsidiary to the address of the Borrower set
forth in or otherwise provided pursuant to the Loan Agreement.
-11-
21. Governing Law. The provisions of this Agreement shall be construed
and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in the State of New York. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement among the Subsidiary and the Banks and the Administrative Agent
with respect to the matters addressed herein and may not be modified except by a
writing executed by the Administrative Agent and delivered to the Subsidiaries.
22. Severability. If any paragraph or part thereof of this Agreement
shall for any reason be held or adjudged to be invalid, illegal or unenforceable
by any court of competent jurisdiction, such paragraph or part thereof so
adjudicated invalid, illegal or unenforceable shall be deemed separate, distinct
and independent, and the remainder of this Agreement shall remain in full force
and effect and shall not be affected by such holding or adjudication.
23. FCC Consent. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Administrative Agent with
respect to the Licenses issued by the FCC unless and until all requirements of
Applicable Law, including, without limitation, any required approval under the
Communications Act, including without limitation the provision for ten (10) days
notice to the FCC required by 47 C.F.R. ss. 22.917(e), requiring the consent to
or approval of such action by the FCC or any governmental or other authority,
have been satisfied. The Subsidiary covenants that upon request of the
Administrative Agent it will cause to be filed such applications and take such
other action as may be reasonably requested by the Administrative Agent to
obtain the consent or approval of the FCC or any governmental or other authority
which has granted any License to the Subsidiary to any action contemplated by
this Agreement and to give effect to the Security Interest of the Administrative
Agent, including, without limitation, the execution of an application for
consent by the FCC to an assignment or transfer involving a change in ownership
or control pursuant to the provisions of the Communications Act.
24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
25. Changes in Applicable Law. The parties acknowledge their intent
that, upon the occurrence of an Event of Default and during the continuance
thereof, the Administrative Agent shall receive, to the fullest extent permitted
by Applicable Law and governmental policy (including, without limitation, the
rules, regulations and policies of the FCC), all rights necessary or desirable
to obtain, use or sell the Collateral and to exercise
-12-
all remedies available to it under this Agreement, the Uniform Commercial Code
as in effect in any applicable jurisdiction, or other Applicable Law. The
parties further acknowledge and agree that, in the event of changes in law or
governmental policy occurring subsequent to the date hereof that affect in any
manner the Administrative Agent's rights of access to, or use or sale of, the
Collateral, or the procedures necessary to enable the Administrative Agent to
obtain such rights of access, use or sale, the Administrative Agent and the
Subsidiary shall amend this Agreement in such manner as the Administrative Agent
shall reasonably request in order to provide the Administrative Agent such
rights to the greatest extent possible consistent with Applicable Law and
governmental policy.
26. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of all the
Banks, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of all the Banks.
[Remainder of Page Intentionally Left Blank]
-13-
IN WITNESS WHEREOF, the undersigned have hereunto set their hands, by
and through their duly authorized representatives, as of the day and year first
written above.
SUBSIDIARY: __________________, INC., a ____________
By:
Its:
[CORPORATE SEAL]
Attest:
Its:
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
Its:
SUBSIDIARY SECURITY AGREEMENT
Signature Page 1
EXHIBIT J
FORM OF USE OF PROCEEDS LETTER
As of ________ __, ____
Toronto Dominion (Texas), Inc.,
as Administrative Agent
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Re: $90,000,000 Loans to American Tower Systems, Inc.
Ladies and Gentlemen:
We refer to the Loan Agreement dated as of November 22, 1996 (as in
effect on the date hereof, the "Loan Agreement"), among American Tower Systems,
Inc., a Delaware corporation (the "Borrower"), the Banks (as defined in the Loan
Agreement) and Toronto Dominion (Texas), Inc., as administrative agent for the
Banks (in such capacity, the "Administrative Agent"), pursuant to which and
subject to the terms and conditions whereof the Banks agreed to make loans to
the Borrower. Unless otherwise defined herein, terms defined in the Loan
Agreement are used herein as therein defined.
The Borrower hereby certifies to the Administrative Agent and the Banks
that the proceeds of the Advance made under the Commitment on ___________ ____,
____ shall be used as follows:
______________________________________________________
______________________________________________________
______________________________________________________
Attached hereto is a sources and uses statement describing the
transactions contemplated to occur on __________ __, ____.
AMERICAN TOWER SYSTEMS, INC., a Delaware
corporation
By:
Its:
EXHIBIT K
FORM OF BORROWER'S LOAN CERTIFICATE
AMERICAN TOWER SYSTEMS, INC.
The undersigned, _________________, as the duly elected
___________________ of American Tower Systems, Inc., a Delaware corporation (the
"Corporation"), hereby certifies, that:
1. The following persons are, on and as of the date hereof, duly
elected officers of the Corporation holding the office(s) set opposite their
respective names, and the signatures set opposite their respective names are the
true signatures of said officers:
Name Office Signature
_________________ __________________ __________________________
_________________ __________________ __________________________
_________________ __________________ __________________________
2. Exhibit A attached hereto is a true and complete copy of the
resolutions duly adopted by the Board of Directors of the Corporation; and such
resolutions have not been amended, modified or rescinded and remain in full
force and effect as of the date hereof.
3. Exhibit B attached hereto is a true and complete copy of the
Certificate of Incorporation of the Corporation and all amendments thereto in
effect on the date hereof.
4. Exhibit C attached hereto is a true and complete copy of the By-Laws
of the Corporation together with all amendments thereto as of the date hereof.
5. Exhibit D attached hereto are true, complete and correct copies of
certificates of good standing for the Borrower from the Secretary of State for
the State of Delaware and for each other jurisdiction in which the Borrower is
required to qualify to do business in order to transact the business which it
transacts in such jurisdiction in accordance with Applicable Law, subject to the
provisions of the Loan Agreement. The Borrower has, from the dates of such
certificates, remained in good standing under the laws of such states.
6. Exhibit E attached hereto is a true, complete and correct copy of
any shareholders' agreements or voting trust agreements in effect with respect
to the stock of the Borrower.
IN WITNESS WHEREOF, the undersigned _________________, as
___________________ of American Tower Systems, Inc., has executed this
Certificate as of the ____ day of November, 1996.
AMERICAN TOWER SYSTEMS, INC., a Delaware
corporation
By:
Name:
Title:
EXHIBITS
Exhibit A - Authorizing Resolutions
Exhibit B - Certificate of Incorporation
Exhibit C - By-laws
Exhibit D - Good-Standing Certificates
Exhibit E - Shareholders' or Voting Trust Agreements
-2-
EXHIBIT L
FORM OF SUBSIDIARY LOAN CERTIFICATE
[NAME OF SUBSIDIARY]
The undersigned, _________________________, as the duly elected
_____________________ of ________________, a ___________ corporation (the
"Corporation"), hereby certifies, that:
1. The following persons are, on and as of the date hereof, duly
elected officers of the Corporation holding the office(s) set opposite their
respective names, and the signatures set opposite their respective names are the
true signatures of said officers:
Name Office Signature
_________________ __________________ __________________________
_________________ __________________ __________________________
_________________ __________________ __________________________
2. Exhibit A attached hereto is a true and complete copy of the
resolutions duly adopted by the Board of Directors of the Corporation; and such
resolutions have not been amended, modified or rescinded and remain in full
force and effect as of the date hereof.
3. Exhibit B attached hereto is a true and complete copy of the
Certificate of Incorporation of the Corporation and all amendments thereto in
effect on the date hereof.
4. Exhibit C attached hereto is a true and complete copy of the By-Laws
of the Corporation together with all amendments thereto as of the date hereof.
IN WITNESS WHEREOF, the undersigned ______________________, as
______________________ of _____________________, has executed this Certificate
as of the _____ day of November, 1996.
[NAME OF SUBSIDIARY], a __________
corporation
By:
Name:
Title:
EXHIBITS
Exhibit A - Authorizing Resolutions
Exhibit B - Certificate of Incorporation
Exhibit C - By-laws
EXHIBIT M
FORM OF PERFORMANCE CERTIFICATE
The undersigned hereby certifies that he or she is the Chief Financial
Officer of American Tower Systems, Inc., a Delaware corporation (the
"Borrower"). In connection with that certain Loan Agreement dated as of November
22, 1996 (as in effect on the date hereof, the "Loan Agreement") by and among
the Borrower, the Banks (as defined in the Loan Agreement) and Toronto Dominion
(Texas), Inc., as administrative agent for the Banks (in such capacity, the
"Administrative Agent"), the undersigned does hereby certify, as the Chief
Financial Officer of and on behalf of the Borrower, that:
1. Calculations demonstrating the interest rate adjustment, as
provided for in Section 2.3(f) of the Loan Agreement, for the
[quarter/year] ended ______________, 199_, are set forth on
Schedule 1 attached hereto;
2. Calculations demonstrating compliance with Sections 7.7, 7.8,
7.9, 7.10 and 7.11 of the Loan Agreement are set forth on
Schedule 2 attached hereto; and
4. To the knowledge of the undersigned after due inquiry of other
officers of the Borrower, no Default or Event of Default has
occurred during or as at the end of such [quarter/year].
Capitalized terms used herein and not otherwise defined are used as
defined in the Loan Agreement.
IN WITNESS WHEREOF, I have executed this Performance Certificate as of
__________________, ____.
AMERICAN TOWER SYSTEMS, INC., a
Delaware corporation
By:
Name:
Chief Financial Officer
EXHIBIT N
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is made and entered into as of
____________ ____, ____, by and between _______________________________________
(the "Assignor"), and ______________________________________________ (the
"Assignee").
Recitals
A. American Tower Systems, Inc., a Delaware corporation (the
"Borrower"), the Assignor and certain other financial institutions (together
with any other person which becomes a 'Bank' under the Loan Agreement, as such
term is hereinafter defined, the "Banks"), and Toronto Dominion (Texas), Inc.,
as administrative agent for the Banks (in such capacity, the "Administrative
Agent"), are parties to a certain Loan Agreement dated as of November 22, 1996
(as the same has been amended, modified or supplemented from time to time, the
"Loan Agreement"). Pursuant to the Loan Agreement, the Banks have agreed to
extend credit to the Borrower under the Commitment, of which the Assignor's
portion of the Commitment is the amount specified in Item 1 of Schedule 1 hereto
(the "Assignor's Commitment"). The principal amount of outstanding Loans made by
the Assignor to the Borrower pursuant to the Assignor's Commitment is specified
in Item 2 of Schedule 1 hereto (the "Assignor's Loans"). All capitalized terms
not otherwise defined herein are used herein as defined in the Loan Agreement.
B. The Assignor wishes to sell and assign to the Assignee, and the
Assignee wishes to purchase and assume from the Assignor, (i) the portion of the
Assignor's Commitment specified in Item 3 of Schedule 1 hereto which is
equivalent to the percentage of Assignor's Commitment specified in Item 4 of
Schedule 1 ("Assigned Commitment"), and (ii) the portion of the Assignor's Loans
under the Commitment specified in Item 5 of Schedule 1 hereto (the "Assigned
Loans").
The parties agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein,
the Assignor hereby sells and assigns to the Assignee, and the Assignee
purchases and assumes from the Assignor, without recourse to the Assignor, on
the date set forth above (the "Assignment Date") (a) all right, title, and
interest of the Assignor to the Assigned Loans and (b) all obligations of the
Assignor under the Loan Agreement with respect to the Assigned Commitment. As
full consideration for the sale of the
Assigned Loans and the Assigned Commitment, the Assignee shall pay to the
Assignor on the Assignment Date such amount as shall have been agreed to between
the Assignor and the Assignee (the "Purchase Price").
2. Consents and Undertaking. The Administrative Agent and the Borrower
hereby consent to the assignment made herein, and the Borrower undertakes within
five (5) Business Days from the Assignment Date to provide new Notes to the
Administrative Agent, for the benefit of the Assignee and the Assignor, as
appropriate to reflect the portion of the Commitment held by each of the
Assignee and the Assignor after giving effect to the assignment contemplated by
this Agreement. The Assignor agrees on the Business Day following receipt by the
Administrative Agent of the new Note, to return its superseded Note to the
Administrative Agent, which shall thereupon transmit the new Notes to the
Assignor and the Assignee and the superseded Note to the Borrower for
cancellation.
3. Representations and Warranties. Each of the Assignor and the
Assignee represents and warrants to the other, to the Administrative Agent and
to the Borrower (a) that (i) it has full power and legal right to execute and
deliver this Agreement and to perform the provisions of this Agreement; (ii) the
execution, delivery, and performance of this Agreement have been authorized by
all necessary action, corporate or otherwise, on its part and do not violate any
provisions of its charter or by-laws or any contractual obligations or
requirement of law binding on it; and (iii) this Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance with
its terms subject, as to enforcement of remedies, to the following
qualifications: (A) an order of specific performance and an injunction are
discretionary remedies and, in particular, may not be available where damages
are considered an adequate remedy at law, and (B) enforcement may be limited by
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
Assignee or the Assignor, as the case may be), and (b) that its purchase of the
Assigned Loans and the Assigned Commitment does not constitute a "prohibited
transaction" as defined in Section 4.1(m) of the Loan Agreement.
4. Condition Precedent. The obligations of the Assignor and the
Assignee hereunder shall be subject to the fulfillment of the condition that (i)
the Assignor shall have received payment in full of the Purchase Price and (ii)
the Assignor and the Assignee shall have complied with other applicable
provisions of Section 11.5(c) of the Loan Agreement.
5. Notice of Assignment. The Assignor hereby gives notice of the
assignment and assumption of the Assigned Loans and the Assigned Commitment to
the Administrative Agent and hereby
- 2 -
instructs the Borrower to make payments with respect to the Assigned Loans and
the Assigned Commitment directly to the Administrative Agent for the benefit of
the Assignee as provided in the Loan Agreement; provided, however, that the
Borrower and the Administrative Agent shall be entitled to continue to deal
solely and directly with the Assignor in connection with the interests so
assigned until (i) the Administrative Agent shall have received a copy of this
Assignment and Assumption Agreement duly executed by the Assignor, the Assignee,
and the Borrower, and shall have received the assignment fee described in
Section 11.5(c)(iii) of the Loan Agreement, and (ii) the Assignor shall have
delivered to the Administrative Agent its Note. From and after the date (the
"Effective Date") on which the Administrative Agent shall notify the Borrower,
the Assignee and the Assignor that (i) and (ii) have occurred and all consents
(if any) required have been given, the Assignee shall be deemed to be a party to
the Loan Agreement and, to the extent that rights and obligations thereunder
shall have been assigned to Assignee as provided herein, shall have the rights
and obligations of a Bank under the Loan Agreement. After the Effective Date,
and with respect to all such amounts accrued from the Assignment Date, (a) all
interest, principal, fees, and other amounts that would otherwise be payable to
the Assignor in respect of the Assigned Loans and the Assigned Commitment shall
be paid to the Assignee, (b) if the Assignor receives any payment on account of
the Assigned Loans or the Assigned Commitment that is payable to the Assignee,
the Assignor shall promptly deliver such payment to the Assignee, and (c) if the
Assignee receives any payment in respect of Obligations of the Borrower accrued
prior to the Effective Date, then the Assignee shall pay over the same to the
Assignor. The Assignee agrees to deliver to the Borrower and the Administrative
Agent on or before the Effective Date such Internal Revenue Service forms as may
be required to establish that the Assignee is entitled to receive payments under
the Loan Agreement without deduction or withholding of tax.
6. Independent Investigation. The Assignee acknowledges that it is
purchasing the Assigned Loans and the Assigned Commitment from the Assignor
without recourse and, except as provided in Section 3(a) hereof, without
representation or warranty. The Assignee further acknowledges that it has made
its own independent investigation and credit evaluation of the Borrower in
connection with its purchase of the Assigned Loans and the Assigned Commitment
and has received copies of all Loan Documents that it has requested. Except for
the representations or warranties set forth in Section 3(a), the Assignee
acknowledges that it is not relying on any representation or warranty of the
Assignor, expressed or implied, including without limitation, any representation
or warranty relating to the legality, validity, genuineness, enforceability,
collectibility, interest rate, repayment schedule, or accrual status of the
Assigned Loans or the Assigned Commitment, the legality, validity, genuineness,
or enforceability of the Loan Agreement,
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the Notes, or any other Loan Document referred to in, or delivered pursuant to,
the Loan Agreement, or the financial condition or creditworthiness of the
Borrower. The Assignor has not acted and will not be acting as either the
representative, agent or trustee of the Assignee with respect to matters arising
out of or relating to the Loan Agreement or this Agreement. From and after the
Effective Date, the Assignor shall have no rights or obligations with respect to
the Assigned Loans or the Assigned Commitment.
7. Method of Payment. All payments to be made by the Assignor or the
Assignee party hereunder shall be in funds available at the place of payment on
the same day and shall be made by wire transfer to the account designated by the
party to receive payment.
8. Integration. This Agreement shall supersede any prior agreement or
understanding between the parties (other than the Loan Agreement or other Loan
Documents) as to the subject matter hereof.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon the parties, their successors and assigns.
10. Governing Law. This Agreement shall be governed by, and construed
in accordance with, the internal laws of the State of New York applicable to
contracts made and to be performed in New York.
IN WITNESS WHEREOF, the Assignor and Assignee have executed, sealed and
delivered this Agreement as of the date first above written.
[ASSIGNOR]
By:
Title:
[ASSIGNEE]
By:
Title:
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Agreed and Accepted:
AMERICAN TOWER SYSTEMS, INC.,
a Delaware corporation
By: _____________________________
Title :__________________________
Acknowledged:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By: _____________________________
Title :__________________________
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SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Loan Agreement
for American Tower Systems, Inc.
dated as of November 22, 1996
Item 1. Assignor's Commitment: $__________
Item 2. Assignor's Loans Outstanding
(a) Base Rate Advances $__________
(b) LIBOR Advances $__________
Item 3. Amount of Assigned Commitment $__________
Item 4. Percentage of Commitment Assigned __________%
Item 5. Amount of Assigned Loans $__________
(a) Base Rate Advances $__________
(b) LIBOR Advances $__________
Item 6. Lending Office of Assignee _________________________
and Address for Notices _________________________
under Loan Agreement _________________________
_________________________
Notes to Schedule 1
1. Insert the dollar amount of Assignor's portion of the Commitment
prior to assignment.
2. Insert the total amount of outstanding Loans of Assignor, showing a
breakdown by type. Description of the type of Loan should conform to the
description in the Loan Agreement.
3. Insert the dollar amount of the Assignor's Commitment, including
outstanding Loans, being assigned.
4. Assigned Commitment as of a percentage of total Commitment of all
Banks.
5. Insert the total amount of outstanding Loans of Assignor being
assigned to Assignee. Description of the type of Loans should be consistent with
Item 2.
6. Insert the name and address of the lending office of the Assignee.
