EXHIBIT 10.35.1
EXECUTION COPY
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$95,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of April 15, 2005
among
GLOBAL SIGNAL OPERATING PARTNERSHIP, L.P.
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent
and
L/C Issuer,
and
The Other Lenders Party Hereto
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TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.................................2
1.01 Defined Terms....................................................2
1.02 Other Interpretive Provisions...................................24
1.03 Accounting Terms................................................25
1.04 Rounding........................................................25
1.05 Times of Day....................................................25
1.06 Letter of Credit Amounts........................................25
1.07 Effect of Amendment and Restatement.............................26
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS...........................26
2.01 Loans...........................................................26
2.02 Borrowings, Conversions and Continuations of Loans..............28
2.03 Letters of Credit...............................................29
2.04 [Intentionally Omitted.]........................................37
2.05 Prepayments.....................................................37
2.06 Termination or Reduction of Revolving Commitments...............38
2.07 Repayment of Loans..............................................39
2.08 Interest........................................................39
2.09 Fees............................................................40
2.10 Computation of Interest and Fees................................40
2.11 Evidence of Debt................................................41
2.12 Payments Generally; Administrative Agent's Clawback.............41
2.13 Sharing of Payments by Lenders..................................43
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY..........................44
3.01 Taxes...........................................................44
3.02 Illegality......................................................47
3.03 Inability to Determine Rates....................................47
3.04 Requirements of Law.............................................48
3.05 Survival........................................................49
ARTICLE IV. CONDITIONS PRECEDENT TO Credit Extensions.......................49
4.01 Conditions of Initial Term B Loan Credit Extension..............49
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TABLE OF CONTENTS
(continued)
PAGE
4.02 Conditions to all Credit Extensions.............................50
ARTICLE V. REPRESENTATIONS AND WARRANTIES..................................51
5.01 Financial Condition.............................................51
5.02 No Change.......................................................52
5.03 Existence; Compliance with Law..................................52
5.04 Power; Authorization; Enforceable Obligations...................52
5.05 No Legal Bar....................................................52
5.06 No Material Litigation..........................................53
5.07 No Default......................................................53
5.08 Ownership of Property; Liens....................................53
5.09 Intellectual Property...........................................53
5.10 No Burdensome Restrictions......................................53
5.11 Taxes...........................................................53
5.12 Federal Regulations.............................................54
5.13 ERISA...........................................................54
5.14 Investment Company Act; Other Regulations.......................54
5.15 Subsidiaries....................................................54
5.16 Security Documents..............................................55
5.17 True and Complete Disclosure....................................55
5.18 Labor Relations.................................................55
5.19 Insurance.......................................................56
5.20 Purpose of Loans................................................56
5.21 Environmental Matters...........................................56
5.22 Foreign Person..................................................56
5.23 No Synthetic Leases.............................................56
5.24 Limited Partner.................................................56
ARTICLE VI. AFFIRMATIVE COVENANTS...........................................57
6.01 [Intentionally Omitted.]........................................57
6.02 Certificates; Other Information.................................57
6.03 Payment of Obligations..........................................57
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TABLE OF CONTENTS
(continued)
PAGE
6.04 Conduct of Business and Maintenance of Existence................57
6.05 Maintenance of Property.........................................58
6.06 Maintenance of Insurance........................................58
6.07 Inspection of Property; Books and Records; Discussions..........58
6.08 Notices.........................................................58
6.09 Environmental Laws..............................................59
6.10 Compliance with Laws............................................59
6.11 Additional Guarantors; Guarantors...............................59
6.12 Further Assurances..............................................60
ARTICLE VII. NEGATIVE COVENANTS..............................................60
7.01 Limitation on Indebtedness......................................60
7.02 Liens...........................................................61
7.03 Limitation on Guarantee Obligations.............................62
7.04 Limitation on Fundamental Changes...............................63
7.05 Limitation on Sale of Assets....................................63
7.06 Limitation on Distributions.....................................64
7.07 [Intentionally Omitted.]........................................64
7.08 Limitation on Investments, Loans and Advances...................64
7.09 Limitation on Prepayments and Modifications of
Debt Instruments................................................65
7.10 Limitation on Transactions with Affiliates......................65
7.11 Limitation on Synthetic Leases and Sale/Leaseback Transactions..65
7.12 Limitation on Changes in Fiscal Year............................66
7.13 Limitation on Negative Pledges..................................66
7.14 Limitation on Lines of Business.................................66
7.15 Governing Documents.............................................66
7.16 Limitation on Subsidiary Formation..............................66
7.17 Xxxx Xxxxx Transaction Agreement................................66
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES..................................66
8.01 Events of Default...............................................66
8.02 Remedies Upon Event of Default..................................69
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TABLE OF CONTENTS
(continued)
PAGE
8.03 Application of Funds............................................69
ARTICLE IX. ADMINISTRATIVE AGENT............................................70
9.01 Appointment and Authority.......................................70
9.02 Rights as a Lender..............................................70
9.03 Exculpatory Provisions..........................................70
9.04 Reliance by Administrative Agent................................71
9.05 Delegation of Duties............................................72
9.06 Resignation of Administrative Agent.............................72
9.07 Non-Reliance on Administrative Agent and Other Lenders..........73
9.08 Administrative Agent May File Proofs of Claim...................73
9.09 Collateral and Guarantee Matters................................73
ARTICLE X. MISCELLANEOUS...................................................74
10.01 Amendments, Etc.................................................74
10.02 Notices; Effectiveness; Electronic Communication................75
10.03 No Waiver; Cumulative Remedies..................................77
10.04 Expenses; Indemnity; Damage Waiver..............................77
10.05 Payments Set Aside..............................................79
10.06 Successors and Assigns..........................................79
10.07 Treatment of Certain Information; Confidentiality...............82
10.08 Right of Setoff.................................................82
10.09 Interest Rate Limitation........................................83
10.10 Counterparts; Integration; Effectiveness........................83
10.11 Survival of Representations and Warranties......................83
10.12 Severability....................................................84
10.13 Replacement of Lenders..........................................84
10.14 Governing Law; Jurisdiction; Etc................................85
10.15 Waiver of Jury Trial............................................86
10.16 USA PATRIOT Act Notice..........................................86
10.17 ENTIRE AGREEMENT................................................86
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TABLE OF CONTENTS
(continued)
PAGE
SCHEDULES
2.01 Commitments and Applicable Percentages
2.03 Original Letters of Credit
5.15 Subsidiaries
5.16 Filing Jurisdictions
5.19 Insurance
5.21 Environmental Claims
10.02 Administrative Agent's Office; Certain Addresses for Notices
10.06 Direct Competitors
EXHIBITS
FORM OF
A Loan Notice
B Pledge Agreement
C Security Agreement
D Note
E Assignment and Assumption
F-1 Parent Guarantee
F-2 Subsidiary Guarantee
G Section 3.01 Certificate
H Deed of Charge with respect to Pinnacle Towers Limited
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDED AND RESTATED CREDIT AGREEMENT ("Agreement") is entered
into as of April 15, 2005, among GLOBAL SIGNAL OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership (the "Borrower"), each lender from time to time
party hereto (collectively, the "Lenders" and individually, a "Lender"), and
BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer.
RECITALS
WHEREAS, The Borrower, the Lenders and the Administrative Agent are each
party to that certain Credit Agreement, dated as of December 3, 2004, as
heretofore amended, supplemented or otherwise modified by that certain Amended
and Restated Credit Agreement, dated as of February 9, 2005 (without giving
effect to this Second Amended and Restated Credit Agreement, the "Original
Credit Agreement") and the Loan Documents (as defined in the Original Credit
Agreement, the "Original Loan Documents"), pursuant to which the Lenders
provided a credit facility for the making of revolving loans and term loans (the
"Original Loans") by the Lenders and the issuance of letters of credit (the
"Original Letters of Credit") by the L/C Issuer, in an aggregate principal
amount and/or face amount not to exceed $70,000,000; and
WHEREAS, in order to secure all Obligations under and as defined in the
Original Credit Agreement, (i) the Borrower has pledged and has granted to
Administrative Agent a security interest in and lien upon substantially all of
its personal and real property and each Parent (as hereinafter defined) has
pledged and has granted to the Administrative Agent a security interest in and
lien upon all of the Capital Stock of the Borrower and certain of its
Subsidiaries (collectively, the "Original Collateral"), and (ii) the Parents and
the Subsidiary Guarantors (as hereinafter defined) have provided guarantees of
all such Obligations; and
WHEREAS, the Borrower, Lenders and Administrative Agent wish to amend and
restate the Original Credit Agreement, subject to the terms and conditions set
forth herein, to, among other things, provide the Borrower with an additional
$25,000,000 multi-draw term loan; the proceeds of which shall be used in
connection with the Xxxx Xxxxx Transaction (as hereinafter defined) and to pay
fees and expenses in connection therewith; and
WHEREAS, the Borrower, Lenders and Administrative Agent intend that (i) the
Obligations under and as defined in the Original Credit Agreement shall continue
to exist under, and to be evidenced by, this Agreement, (ii) the Original Loans
shall be Loans under and as defined in this Agreement, (iii) the Original
Letters of Credit shall be Letters of Credit under and as defined in this
Agreement, and (iv) the Original Collateral shall continue to secure the
Obligations (as hereinafter defined); and
WHEREAS, Borrower desires to continue to secure all of the Obligations by
continuing to grant to Administrative Agent, for the benefit of Administrative
Agent, Lenders and the L/C Issuer, a security interest in and lien upon
substantially all of its personal and real property; and
WHEREAS, the Parents desire to continue to secure all of the Obligations by
continuing to grant to Administrative Agent, for the benefit of Administrative
Agent, Lenders and the L/C
Issuer, a security interest in and lien upon the Capital Stock of the Borrower
and certain of its Subsidiaries and to continue to guarantee all of the
Obligations; and
WHEREAS, the Subsidiary Guarantors desire to continue to guarantee all of
the Obligations.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Account Control Agreement" has the definition given to it in the Security
Agreement.
"Acquisition" means any acquisition by (i) the Borrower or any Subsidiary
of the Borrower (except Pinnacle Towers and any of its Subsidiaries) of all of
the Capital Stock of any Person, or (ii) a Subsidiary of the Borrower of Towers
or of all the Capital Stock of any Person that holds Towers as a principal
asset.
"Administrative Agent" means Bank of America in its capacity as
administrative agent or as security trustee under any of the Loan Documents, or
any successor administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"Administrative Questionnaire" means an administrative questionnaire in a
form supplied by the Administrative Agent.
"Affiliate" means as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person (including,
with its correlative meanings, "controlled by" and "under common control with")
means the power, directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of directors of such
Person or (b) direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise.
"Aggregate Commitments" means the Commitments of all the Lenders.
"Aggregate Revolving Commitments" means the Revolving Commitments of all
the Lenders.
"Aggregate Term A Loan Commitments" means the Term A Loan Commitments of
all the Lenders.
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"Aggregate Term B Loan Commitments" means the Term B Loan Commitments of
all Lenders.
"Agreement" means this Amended and Restated Credit Agreement, as amended,
restated, modified or otherwise supplemented from time to time.
"Applicable Percentage" means, collectively, with respect to any Lender at
any time, its Applicable Revolving Percentage, its Applicable Term A Loan
Percentage and its Applicable Term B Loan Percentage.
"Applicable Rate" means a per annum rate equal to:
(a) with respect to Revolving Loans which are Base Rate Loans, 2.00%;
(b) with respect to Term Loans which are Base Rate Loans, 0.75%
(c) with respect to Revolving Loans which are Eurodollar Rate Loans
and Letter of Credit Fees, 3.00%;
(d) with respect to Term Loans which are Eurodollar Rate Loans, 1.75%;
and
(e) with respect to the Revolving Facility Fee, 0.75%.
"Applicable Revolving Percentage" means with respect to any Lender at any
time, the percentage (carried out to the ninth decimal place) of the Aggregate
Revolving Commitments represented by such Lender's Revolving Commitment at such
time. If the Revolving Commitment of each Lender to make Revolving Loans and the
obligation of the L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02 or if the Aggregate Revolving Commitments have expired,
then the Applicable Revolving Percentage of each Lender shall be determined
based on the Applicable Revolving Percentage of such Lender most recently in
effect, giving effect to any subsequent assignments. The initial Applicable
Revolving Percentage of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.
"Applicable Term A Loan Percentage" means with respect to any Lender at any
time, the percentage (carried out to the ninth decimal place) of the Outstanding
Amount of the Term A Loans at such time. If the Term A Loan Commitment of each
Lender to make Term A Loans has been terminated pursuant to Section 8.02 or if
the Aggregate Term A Loans Commitments have expired, then the Applicable Term A
Loan Percentage of each Lender shall be determined based on the Applicable Term
A Loan Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Term A Loan Percentage of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
"Applicable Term B Loan Percentage" means with respect to any Lender at any
time, the percentage (carried out to the ninth decimal place) of (i) the
Aggregate Term B Loan Commitments represented by such Lender's Term B Loan
Commitment at such time, or (ii) if
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Term B Loan Commitments have been terminated pursuant to Section 2.01(c)(ii),
the Outstanding Amount of Term B Loans. If the Term B Loan Commitment of each
Lender to make Term B Loans has been terminated pursuant to Section 8.02 or if
the Aggregate Term B Loans Commitments have expired, then the Applicable Term B
Loan Percentage of each Lender shall be determined based on the Applicable Term
B Loan Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Term B Loan Percentage of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) a Person or an Affiliate of a Person
that administers or manages a Lender (in each case, other than a natural
person).
"Asset Sale" means any sale, lease or other disposition of property or
series of related sales, leases or other dispositions of property (excluding any
such sale, lease or other disposition permitted by Sections 7.05(b), (c) and
(d)).
"Assignee" have the meaning specified in Section 10.07.
"Assignment and Assumption" means an assignment and assumption entered into
by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 10.06(b)), and accepted by the Administrative
Agent, in substantially the form of Exhibit E or any other form approved by the
Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of
the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance sheet
of Global Signal and its consolidated Subsidiaries for the fiscal year ended
December 31, 2004, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal year of Global
Signal and its consolidated Subsidiaries, including the notes thereto.
"Bank of America" means Bank of America, N.A. and its successors.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
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"Base Rate Loan" means a Loan that bears interest based on the Base Rate.
"Borrower" has the meaning specified in the introductory paragraph hereto.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same
Type and, in the case of Eurodollar Rate Loans, having the same Interest Period
made by each of the Lenders pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent's Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all similar ownership interests in a Person (other than a corporation) and
any and all warrants, rights or options to purchase any of the foregoing.
"Xxxx Xxxxx" means Sprint Corporation, a Kansas corporation, together with
certain Subsidiaries thereof or a newly formed Subsidiary of Sprint Corporation
to be party to the Xxxx Xxxxx Transaction Agreement, as the context may require.
"Xxxx Xxxxx Indebtedness" means, as to any Person at any date, Indebtedness
of such Person incurred in connection with the consummation of the Xxxx Xxxxx
Transaction; provided, however, that such Indebtedness is incurred under a
financing or other financial accommodation provided to such Person by Bank of
America, or any of its Affiliates, and Xxxxxx Xxxxxxx, or any of its Affiliates.
"Xxxx Xxxxx Transaction" means a transaction in which Global Acquisitions
II (as a designee of Global Signal) acquires a 32-year master lease of
approximately sixty-six hundred Towers and related co-location agreements from
Xxxx Xxxxx pursuant to the Xxxx Xxxxx Transaction Agreement.
"Xxxx Xxxxx Transaction Agreement" means the Agreement to Contribute, Lease
and Sublease, dated on or about February 9, 2005, between Global Signal and Xxxx
Xxxxx pursuant to which Global Signal and Xxxx Xxxxx agree to consummate the
Xxxx Xxxxx Transaction.
"Cash Equivalents" means (a) securities with maturities of 90 days or less
from the date of acquisition issued or fully guaranteed or insured by the United
States Government or any agency thereof, (b) certificates of deposit and
eurodollar time deposits with maturities of 90 days or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of any Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than seven days with respect
to securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-1 or the
equivalent thereof by S&P or P-1 or the equivalent thereof by Xxxxx'x and in
either case maturing within 90 days after the day of acquisition,
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(e) securities with maturities of 90 days or less from the date of acquisition
issued or fully guaranteed by any state, commonwealth or territory of the United
States, by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A by
Xxxxx'x, (f) securities with maturities of 90 days or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this definition or
(g) shares of money market mutual or similar funds which invest exclusively in
assets satisfying the requirements of clauses (a) through (f) of this
definition.
"Cash Collateralize" has the meaning specified in Section 2.03(g).
"Change of Control" means the occurrence of any of the following:
(a) the Equity Investors and/or any Person controlled by Fortress
Investment Group LLC or Xxxxxxxxx Capital Partners, L.P. or any of its
Affiliates shall, directly or indirectly, cease to own and/or control in
the aggregate (i) at least 51% of the voting interest in the Capital Stock
of Global Signal or (ii) at least 51% of the voting and economic interest
(directly or indirectly) in the Capital Stock of the Borrower; or
(b) Global Signal shall cease to own at least 51% of the voting and
economic interest in the Capital Stock of the Borrower; or
(c) prior to the Permitted Securitization, GSOP shall cease to own at
least 100% of the voting and economic interest in the Capital Stock of
Pinnacle Towers; or
(d) with respect to any direct or indirect Subsidiary of the Borrower,
an event or series of events resulting in the Borrower ceasing to own
directly or indirectly less than 100% of the Capital Stock of such
Subsidiary (other than pursuant to a dissolution of such Subsidiary);
(e) an event or series of events by which during any period of 12
consecutive months, a majority of the members of the board of directors or
other equivalent governing body of Global Signal, the Borrower and/or any
Subsidiary of the Borrower cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority
of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the
time of such election or nomination at least a majority of that board or
equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for
the election or removal of one or more
6
directors by any person or group other than a solicitation for the election
of one or more directors by or on behalf of the board of directors); or
(f) if at any time, Xxxxxx X. Xxxxx, or such replacement acceptable to
the Lenders, shall cease to be Chairman of the board of directors or other
equivalent governing body of Global Signal, and a replacement Chairman has
not been appointed within thirty (30) days following such occurrence, or if
a replacement Chairman has not been appointed, all of the Obligations have
not been paid in full within such thirty (30) day period;
provided that in no event shall the merger of the Borrower with or into Global
Signal or a Subsidiary of Global Signal be deemed a "Change of Control" so long
as the Required Lenders reasonably determine that such merger is not adverse to
their interests and provide written notice to the Borrower of the same. For the
purposes of this definition, "control" of a Person (including, with its
correlative meanings, "controlled by" and "under common control with") means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors of such Person or (b)
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Class" means, with respect to a Loan, its character as a Revolving Loan or
a Term Loan.
"Closing Date" means the first date all the conditions precedent in Section
4.01 are satisfied or waived in accordance with Section 10.01.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means all property and interests in property of the Parents
and the Borrower, now owned or hereinafter acquired, upon which a Lien is
purported to be created by any Security Document.
"Commitment" means, collectively, as to each Lender, its Revolving
Commitment, Term A Loan Commitment and Term B Loan Commitment.
"Commonly Controlled Entity" means an entity, whether or not incorporated,
which is under common control with Global Signal or the Borrower within the
meaning of Section 4001 of ERISA or is part of a group which includes Global
Signal or the Borrower and which is treated as a single employer under Section
414(b) or (c) of the Code or, for purposes of the Code, Section 414(m) or (o) of
the Code.
"Contingent Liability" means, as to any Person and its consolidated
Subsidiaries, determined on a consolidated basis, any obligation or Guarantee
Obligation, contingent or otherwise, of such Person or any of its consolidated
Subsidiaries, having the effect of guaranteeing or having the economic effect of
guaranteeing any Indebtedness or obligation of any other Person in any manner,
whether directly or indirectly, including without limitation any obligation of
such Person or any of its consolidated Subsidiaries (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Indebtedness, (b) to purchase property or services for the
purpose of assuring the owner of such Indebtedness
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of its payment or (c) to maintain the solvency, working capital, equity, cash
flow, fixed charge or other coverage ratio, or any other financial condition of
the primary obligor so as to enable the primary obligor to pay any Indebtedness
or to comply with any agreement relating to any Indebtedness or obligation, but
excluding endorsement of checks, drafts and other instruments in the ordinary
course of business.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Extension" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"Debt for Borrowed Money" means, with respect to any Person and its
consolidated Subsidiaries, determined on a consolidated basis, from time to
time, at any date, without duplication, (i) all indebtedness (including
principal, interest, fees and charges) of such Person or any of its consolidated
Subsidiaries for borrowed money or for the deferred purchase price of property
or services other than trade accounts payable and accrued expenses incurred and
paid in the ordinary course of business, (ii) the maximum amount available to be
drawn under all letters of credit, bankers' acceptances and similar obligations
issued for the account of such Person or any of its consolidated Subsidiaries
and all unpaid drawings in respect of such letters of credit, banker's
acceptances and similar obligations, (iii) all indebtedness of the types
described in clause (i), (ii), (iv), (v), (vi) or (vii) of this definition
secured by any Lien on any property owned by such Person or any its consolidated
Subsidiaries, whether or not such indebtedness has been assumed by such Person
or any of its consolidated Subsidiaries, (iv) all Attributable Indebtedness of
such Person or its consolidated Subsidiaries, (v) all obligations of such Person
or its consolidated Subsidiaries to pay a specified purchase price for goods or
services, whether or not delivered or accepted, i.e., take-or-pay and similar
obligations, other than trade accounts payable and accrued expenses incurred and
paid in the ordinary course of business, (vi) all Contingent Liabilities of such
Person or its consolidated Subsidiaries that are required to be disclosed and
quantified in notes of financial statements in accordance with GAAP (except
those items excluded from the definition of "Guarantee Obligation" pursuant to
clauses (i) and (ii) of the proviso thereof), and (vii) all obligations of such
Person or any of its consolidated Subsidiaries under any Hedge Agreement or any
similar type of agreement; provided, however, that with respect to Global Signal
or any of its consolidated Subsidiaries, Debt for Borrowed Money shall not
include (i) Indebtedness incurred pursuant to the Permitted Securitization to
the extent the proceeds thereof are held in an acquisition reserve account
located at LaSalle Bank in an amount not to exceed $150,000,000; provided that
such amounts are subject to no Liens, other than Liens permitted under Section
7.02 and are used exclusively for the purchase of Towers by Pinnacle Towers or
any of its Subsidiaries and (ii) the obligations of any of the United Kingdom
Subsidiaries, unless such obligations are guaranteed by such Person or any of
its consolidated Subsidiaries or any of their respective assets are pledged to
secure the United Kingdom Subsidiaries' obligations. The amount of any Debt for
Borrowed Money at any time under (x) clause (iii) shall be equal to the lesser
of (A) the stated amount of the relevant obligations, and (B) the fair market
value of the property subject to the relevant Lien at such time, and (y) clause
(vii) shall be the net amount at such time, including net termination payments,
8
required to be paid to a counterparty, rather than the notional amount of the
applicable Hedge Agreement.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Deed of Charge" means the Deed of Charge and Memorandum of Deposit to be
executed and delivered by the Borrower and Pinnacle Towers Limited,
substantially in the Form of Exhibit H, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Default" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"Default Rate" means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used
with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans or participations in L/C Obligations required to be funded
by it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding; provided that, Xxxxxx Xxxxxxx shall not be deemed to be a
Defaulting Lender for failing to make any Revolving Loans or L/C Advances
hereunder prior to the occurrence of an Event of Default.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) (A) the Administrative Agent and the L/C Issuer, and (B) solely
in the case of any assignment prior to the funding of the Xxxxxx Xxxxxxx
Participations by Xxxxxx Xxxxxxx pursuant to Section 2.01(b), (1) by Bank of
America in the case of an assignment by Xxxxxx Xxxxxxx and (2) by Xxxxxx Xxxxxxx
in the case of an assignment by Bank of America, and (ii) unless an Event of
Default has occurred and is continuing, the Borrower (each such approval not to
be unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of the
Borrower's Affiliates or Subsidiaries or any direct competitor of the Borrower
listed on Schedule 10.06.
9
"Environmental Laws" means any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect, including any applicable
Historical Preservation Laws.
"Equity Investors" means, collectively, Fortress Pinnacle Acquisition LLC,
FRIT Pinn LLC and Xxxxxxxxx Capital Partners, L.P., Greenhill Capital, L.P.,
Xxxxxxxxx Capital Partners (Executives), L.P. and Xxxxxxxxx Capital Partners
(Cayman), L.P. or any other Person reasonably acceptable to the Required
Lenders.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Eurodollar Base Rate" has the meaning specified in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to a
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
Eurodollar Base Rate
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall not be available, the
rate per annum equal to the rate determined by the Administrative Agent to
be the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as
the rate of interest at which deposits in Dollars for delivery on the first
day of such Interest Period in same day funds in the approximate amount of
the Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be offered
by Bank of America's London Branch to major banks in the
10
London interbank eurodollar market at their request at approximately 4:00
p.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB (or any successor thereof)
for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). The Eurodollar
Rate for each outstanding Eurodollar Rate Loan shall be adjusted automatically
as of the effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Subsidiary" means each of Global Signal Holdings I LLC, Global
Signal Holdings II LLC, Global Signal Holdings III LLC, Global Signal Services
LLC, Towers Xxxxx LLC and Towers Xxxxx II LLC, and each of their respective
Subsidiaries, after the consummation of the Permitted Securitization, Pinnacle
Towers and its Subsidiaries, Global Acquisitions II and its Subsidiaries;
provided, however, that if the Xxxx Xxxxx Transaction is not consummated prior
to the Term Loan Maturity Date, Global Acquisitions II and its Subsidiaries
shall cease to be Excluded Subsidiaries hereunder; and, upon the effectiveness
of the Global Acquisitions Credit Agreement, Global Acquisitions and its
Subsidiaries.. "Excluded Subsidiaries" shall mean, collectively, each Excluded
Subsidiary.
"Excluded Taxes" has the meaning specified in Section 3.01(f).
"Extraordinary Receipt" means any cash received by or paid to or for the
account of any Person other than in the ordinary course of business in respect
of tax refunds, pension plan reversions, proceeds of insurance (other than
proceeds of Recovery Events, proceeds of business interruption insurance to the
extent such proceeds constitute compensation for lost earnings and proceeds from
reinsurance received in the ordinary course of business), indemnity payments,
purchase price adjustments received in connection with any purchase agreement
(or other similar agreement) and payments in respect of judgments or settlements
of claims, litigation or proceedings; provided that Extraordinary Receipts shall
not include cash receipts received from proceeds of indemnity payments or
payments in respect of judgments or settlements of claims, litigation or
proceedings to the extent that such proceeds, awards or payments are received by
any Person in respect of any third party claim against or loss by such Person
and promptly applied to pay (or to reimburse such Person for its prior payment
of) such claim or loss and the costs and expenses of such Person with respect
thereto so long as such application is commenced prior to or within 90 days
after the receipt of such proceeds, awards or payments and that any such third
party being so reimbursed shall not be a Loan Party or a Subsidiary or Affiliate
of a Loan Party.
11
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means the amended letter agreement, dated as of the First
Amendment Closing Date, as amended as of the date hereof, between the Borrower
and the Administrative Agent, as the same may be amended, restated, supplemented
and otherwise modified from time to time.
"Financing Lease" means any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"First Amendment Closing Date" means February 9, 2005.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Frit Pinn Credit Agreement" means that certain Credit Agreement, dated as
of December 21, 2004, among Frit Pinn, LLC, as borrower, Bank of America, as
administrative agent, the lenders from time to time party thereto, and Banc of
America Securities LLC and Xxxxxx Xxxxxxx Asset Funding Inc., as joint lead
arrangers and joint book runners, as the same may be amended, amended and
restated, supplemented, or otherwise modified from time to time.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"Fund" means any Person (other than a natural person) that is engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination.
12
"Global Acquisitions" means Global Signal Acquisitions LLC, a Delaware
limited liability Company.
"Global Acquisitions II" means Global Signal Acquisitions II LLC, a
Delaware limited liability company.
"Global Acquisitions Credit Agreement" means the Credit or Loan Agreement,
acceptable to the Lenders, to be entered into by Global Acquisitions, as
borrower, the lenders from time to time party thereto, and Xxxxxx Xxxxxxx Asset
Funding, Inc., as administrative and collateral agent, as the same may be
amended, supplemented, restated or otherwise modified from time to time, the
original principal amount of which shall not exceed $200,000,000.
"Global Signal" means Global Signal Inc., a Delaware corporation.
"Global Signal Default" has the meaning specified in the Parent Guarantee.
"Governing Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Governmental Authority" means the government of the United States or any
other nation, or of any political subdivision thereof, whether state or local,
and any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory
or administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).
"Guarantee Obligation" means as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) the creation of which
induces the guaranteeing person to issue a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary obligation
or any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
13
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include (i) endorsements of instruments for
deposit or collection in the ordinary course of business and (ii) guarantees
required by the sellers party to an acquisition agreement in connection with any
Acquisition of Towers or the Capital Stock of any Person that holds Towers as a
principal asset, whereby Global Signal or any of its Subsidiaries guarantees
payment and performance by a Subsidiary of Global Signal under such agreement,
provided that the aggregate amount of such required guarantees referred to in
this clause (ii) outstanding at any time shall not exceed $125,000,000 plus the
aggregate amount of any required guarantee given in connection with a
transaction or series of transactions with a telecommunications entity disclosed
to and approved by the Lenders prior to the date hereof pursuant to which Global
Signal or one of its Subsidiaries acquires certain assets of such
telecommunications entity and/or its affiliates. The terms "Guarantee" and
"Guaranteed" used as a verb shall have a correlative meaning. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made, and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Guarantees" means, collectively, the Parent Guarantee and the Subsidiary
Guarantees.
"Guarantors" means, collectively, the Parents and each Subsidiary
Guarantor.
"Hedge Agreement" means any interest rate or currency swap, cap or collar
agreement or similar arrangement or foreign exchange contract entered into by
any Person or its consolidated Subsidiaries providing for protection against
fluctuations in interest rates or currency exchange rates or the exchange of
nominal interest obligations, either generally or under specific contingencies.
"Historical Preservation Laws" means the National Historic Preservation Act
of 1966 and each historic preservation program of any State under and in
conjunction with the National Historic Preservation Act of 1966 and any similar
foreign, Federal, state, local or municipal laws, rules or regulations, orders,
statutes, ordinances, codes, decrees, requirements of any Governmental Authority
or other Requirements of Law (including common law).
"Indebtedness" means, as to any Person at any date, without duplication,
(a) all Debt for Borrowed Money of such Person, (b) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar instrument,
(c) all Attributable Indebtedness of such Person, (d) all liabilities referred
to in clauses (a), (b), (c) and (e) of this definition secured by (or for which
the holder of such obligations has an existing right, contingent or otherwise,
to be secured by) any Lien on any property owned by such Person even though such
Person has not assumed or otherwise become liable for the payment thereof, and
(e) all Guarantee Obligations of such Person in respect of obligations of the
kind referred to in clauses (a) through (d) above. The amount of any
Indebtedness under clause (d) shall be equal to the lesser of (i) the stated
14
amount of the relevant obligations, and (ii) the fair market value of the
property subject to the relevant Lien.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"Insolvency" means, with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent" means a condition of Insolvency.
"Intercompany Note" means an intercompany note in favor of the Borrower in
the amount equal to any loans made by the Borrower to any directly owned
Subsidiary pursuant to Section 7.01(d) and Section 7.08(e), in each case in form
and substance reasonably satisfactory to the Administrative Agent.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; provided, however, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each
March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; provided
that:
(i) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless
such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of the calendar month at the end of such Interest
Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment Company Act" has the meaning specified in Section 5.14.
"IRS" means the United States Internal Revenue Service.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
15
"Issuer Documents" means with respect to any Letter of Credit, the Letter
Credit Application, and any other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.
"Laws" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, decrees, licenses, authorizations and permits
of, and agreements with, any Governmental Authority, in each case whether or not
having the force of law.
"L/C Advance" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Applicable
Percentage.
"L/C Borrowing" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Borrowing.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Leased Property" means all real property that is leased or occupied
pursuant to an easement by the Borrower and its Subsidiaries, in each case,
together with all fixtures and appurtenances thereon.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lender Fee Letter" means the amended letter agreement, dated as of the
First Amendment Closing Date, as amended as of the date hereof, among the
Lenders and the Administrative Agent, as the same may be amended, restated,
supplemented and otherwise modified from time to time.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
16
"Letter of Credit" means any letter of credit issued hereunder.
"Letter of Credit Application" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"Letter of Credit Expiration Date" means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day).
"Letter of Credit Fee" has the meaning specified in Section 2.03(i).
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loans" means, collectively, the Term Loans and the Revolving Loans.
"Loan Notice" means a notice of (a) a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Eurodollar Rate Loans,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A.
"Loan Documents" means this Agreement, each Note, the Security Documents,
each Issuer Document and the Guarantees. Loan Documents shall include, without
limitation, the Original Loan Documents, to the extent not expressly superseded
by documents, instruments and/or agreements delivered in connection with this
Agreement.
"Loan Parties" means, collectively, the Borrower, the Guarantors and any
Subsidiary of the Borrower party to a Loan Document.
"Management Agreement" means each of (i) the Management Agreement between
Pinnacle Towers and its Subsidiaries signatory thereto and Global Signal
Services LLC dated as of December 7, 2004 (as amended, amended and restated,
supplemented or otherwise modified from time to time), a copy of which has been
delivered to the Lenders, and (ii) any management agreement which may hereafter
be entered into in accordance with the terms and conditions hereof, pursuant to
which any manager may hereafter manage one or more of the Tower Properties (as
such management agreement may be amended or modified pursuant to a written
instrument in form and substance reasonably satisfactory to the Required
Lenders). "Management Agreements" shall mean, collectively, each Management
Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, property, condition (financial or otherwise) or prospects of
Global Signal and its Subsidiaries, taken as a whole, or the Borrower and its
Subsidiaries, taken as a whole, respectively or (b) the validity or
enforceability of any of the Loan Documents or the rights and remedies of the
Administrative Agent or the Lenders thereunder.
"Memorandum" has the meaning specified in Section 10.11.
17
"Moody's" means Xxxxx'x Investors Service, Inc.
"Xxxxxx Xxxxxxx" means Xxxxxx Xxxxxxx Asset Funding Inc., together with its
successors.
"Xxxxxx Xxxxxxx Participation" has the meaning specified in Section
2.01(b).
"Multiemployer Plan" means a Plan which is a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA and which is subject to Title IV of
ERISA.
"Net Cash Proceeds" means the gross cash proceeds received by the Borrower
or any of its Subsidiaries (other than by the Excluded Subsidiaries, and
Pinnacle Towers and its Subsidiaries prior to the Permitted Securitization) in
connection with or as a result of (a) any sale of any assets, (b) the issuance
of any Indebtedness, (c) the issuance of any equity (other than equity issued to
a Loan Party by another Loan Party), and (d) the receipt of any capital
contributions (other than by a Loan Party with respect to capital contributions
made by another Loan Party) or Extraordinary Receipts, MINUS with respect to
each of the foregoing (so long as each of the following are estimated in good
faith by the management of the Borrower and certified to the Administrative
Agent in reasonable detail by a Responsible Officer) (i) actual taxes paid or
payable with respect to such asset sale or Recovery Event (if any) in an amount
equal to the tax liability of the Borrower or any of its Subsidiaries in respect
of such sale or Recovery Event (taking into account all tax benefits of each of
the parties), (ii) reasonable and customary transaction costs payable by the
Borrower or any such Subsidiary of the Borrower to any Person that is not an
Affiliate or an Equity Investor or Affiliate of an Equity Investor related to
such transaction, (iii) Indebtedness secured by the assets sold or otherwise
subject to a Recovery Event that is immediately repaid as a consequence of such
sale, except Indebtedness that constitutes any of the Obligations, (iv) with
respect to clause (a), the portion of such cash proceeds reserved for
post-closing adjustments, including, without limitation, indemnification
payments and purchase price adjustments which are held in a third-party escrow
account or in a segregated deposit account in which the Administrative Agent has
a first priority perfect security interest, provided that on the date all such
post-closing adjustments have been determined, the amount (if any) by which the
reserved amount exceeds the actual post-closing adjustments payable by the
Borrower or any of its Subsidiaries shall constitute Net Cash Proceeds on such
date, and (v) with respect to clause (a), an amount, not in excess of the
taxable gain recognized on such asset sale, necessary to meet the REIT
Distribution Requirement with respect thereto.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit D.
"Non-Excluded Taxes" has the meaning specified in Section 3.01(a).
"Non-Exempt Lender" has the meaning specified in Section 3.01(f).
"Obligations" means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan Document, or
otherwise with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including without
limitation (i) interest and fees that accrue after the commencement by or
against any
18
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding and (ii) all
reasonable expenses and charges, legal and otherwise, incurred by the
Administrative Agent, the L/C Issuer and/or any Lender in collecting and
enforcing any Obligation or in realizing or protecting any security therefor
provided for in any of the Loan Documents.
"Original Closing Date" means December 3, 2004.
"Original Collateral" has the meaning specified in the recitals.
"Original Credit Agreement" has the meaning specified in the recitals.
"Original Letters of Credit" has the meaning specified in the recitals.
"Original Loan Documents" has the meaning specified in the recitals.
"Original Loans" has the meaning specified in the recitals.
"Other Taxes" has the meaning specified in Section 3.01(b).
"Outstanding Amount" means (i) with respect to Revolving Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Revolving Loans, occurring on such
date; (ii) with respect to the Term A Loans, the aggregate outstanding principal
amount thereof after giving effect to any prepayments or repayments of the Term
A Loans; (iii) with respect to the Term B Loans, the aggregate outstanding
principal amount thereof after giving effect to any prepayments or repayments of
Term B Loans; and (iv) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements by the Borrower of Unreimbursed Amounts.
"Owned Property" means all real estate owned in fee by the Borrower and its
Subsidiaries, together with any fixtures and appurtenances thereon.
"Parent Guarantee" means the Guarantee dated as of the Original Closing
Date, as amended by the First Amendment to the Parent Guarantee, dated as of the
First Amendment Closing Date, as further amended as of the date hereof, made by
the Parents in favor of the Administrative Agent for the benefit of the Lenders,
substantially in the form of Exhibit F-1, as the same may be amended, restated,
supplemented and otherwise modified from time to time.
"Parent Guarantee Second Amendment" means the Second Amendment to the
Parent Guarantee, dated as of the Closing Date, by and among the Parents and the
Administrative Agent.
"Parents" means, collectively, Global Signal and Global Signal GP LLC, a
Delaware limited liability company.
19
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Securitization" means any transaction that may be entered into
by Pinnacle Towers and any one or more of its Subsidiaries pursuant to which
Pinnacle Towers and such Subsidiaries securitize or otherwise finance their
Towers or Tower Properties and any assets related thereto in a rated term
transaction; provided that there shall be no recourse under such transaction to
the Borrower or any other Subsidiary of the Borrower, in each case other than
pursuant to Standard Securitization Undertakings.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Pinnacle Towers" means Pinnacle Towers Acquisition Holdings LLC, a
Delaware limited liability company.
"Pinnacle Towers Credit Agreement" means the Amended and Restated Credit
Agreement dated as of October 15, 2004 by and among Pinnacle Towers, the lenders
from time to time parties thereto, and Xxxxxx Xxxxxxx Asset Funding Inc., as
administrative agent and collateral agent, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Plan" means, at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which Global Signal, the Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreement" means the Pledge Agreement dated as of the Original
Closing Date made by the Borrower and the Parents in favor of the Administrative
Agent, substantially in the form of Exhibit B, as the same may be amended,
restated, supplemented or otherwise modified from time to time.
"Reaffirmations" means, collectively, the Consent and Reaffirmation of each
Guarantee and the Pledge Agreement and the Reaffirmation of the Security
Agreement, each dated as of the date hereof, made by the applicable Loan Parties
and acknowledged and agreed to by the Administrative Agent, pursuant to which
each such Loan Party consents to this Agreement and/or reaffirms its respective
obligations under the applicable Guarantee, Pledge Agreement or Security
Document.
"Recovery Event" means any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower or any of its Subsidiaries.
"Register" has the meaning specified in Section 10.06(c).
20
"REIT Distribution Requirement" means distributions in an amount reasonably
necessary to enable Global Signal to pay the dividends required to maintain its
REIT Status and not be subject to corporate level tax based on income or to
excise tax under Section 4981 of the Code.
"REIT Status" means, with respect to any Person, such Person's status as a
real estate investment trust, as defined in Section 856(a) of the Code, that
satisfies the conditions and limitations set forth in Section 856(b) and 856(c)
of the Code.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Reorganization" means, with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"Request for Credit Extension" means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice and (b) with respect to an
L/C Credit Extension, a Letter of Credit Application.
"Required Lenders" means the Required Term A Loan Lenders, Required Term B
Loan Lender and the Required Revolving Lenders; provided that the Commitment of,
and the portion of the Total Outstandings held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required
Lenders.
"Required Revolving Lenders" means, as of the date of determination,
Lenders having more than 50% of the Aggregate Revolving Commitments or, if the
commitment of each Lender to make Revolving Loans and the obligation of the L/C
Issuer to make L/C Credit Extensions have been terminated pursuant to Section
8.02, Lenders holding in the aggregate more than 50% of the Revolving
Outstandings (with the aggregate amount of each Lender's risk participation and
funded participation in L/C Obligations being deemed "held" by such Lender for
purposes of this definition).
"Required Term A Loan Lenders" means, as of any date of determination,
Lenders having more that 50% of the Outstanding Amount of the Term A Loans.
"Required Term B Loan Lenders" means, as of any date of determination,
Lenders having more than 50% of the Aggregate Term B Loan Commitments or, if the
Commitment of each Lender to make Term B Loans has terminated pursuant to
Section 2.01(c)(ii) or Section 8.02, Lenders holding more than 50% of the
Outstanding Amount of Term B Loans.
"Requirement of Law" means as to any Person, the certificate of
incorporation and by-laws or other organizational or Governing Documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
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"Responsible Officer" means as to any Loan Party, the chief executive
officer, any vice president and the president of such entity (or, if none, a
direct or indirect parent company of such entity acting on behalf of such
entity) or, with respect to financial matters, the chief financial officer or
treasurer of such entity (or, if none, a direct or indirect parent company of
such entity acting on behalf of such entity) or any individual performing the
functions of the foregoing officers pursuant to any Management Agreement.
"Revolving Commitment" means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01(a) and (b) purchase
participations in L/C Obligations, in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such Lender's name
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.
"Revolving Facility Fee" has the meaning specified in Section 2.09(a).
"Revolving Loan" has the meaning specified in Section 2.01(a).
"Revolving Loan Availability Period" means the period from and including
the Original Closing Date to the earliest of (a) the Revolving Loan Maturity
Date, (b) the date of termination of the Aggregate Revolving Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of
each Lender to make Revolving Loans and of the obligation of the L/C Issuer to
make L/C Credit Extensions pursuant to Section 8.02.
"Revolving Loan Maturity Date" means the date which is 364 days after the
Original Closing Date.
"Revolving Outstandings" means the aggregate Outstanding Amount of all
Revolving Loans and L/C Obligations.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Section 3.01 Certificate" has the meaning specified in Section 3.01(f)(2).
"Security Agreement" means the Security Agreement, dated as of the Original
Closing Date, executed and delivered by the Borrower, substantially in the form
of Exhibit C, as the same may be amended, supplemented, restated or otherwise
modified from time to time.
"Security Documents" means the collective reference to the Account Control
Agreements, the Pledge Agreement, the Security Agreement, the Deed of Charge and
all other security documents hereafter delivered to the Administrative Agent
granting a Lien on any asset or assets of any Person in favor of the
Administrative Agent for the benefit of the Lenders, including the L/C Issuer,
to secure any of the Obligations or to secure any guarantee of any such
Obligations. The Security Documents shall include, without limitation, the
"Security
22
Documents" (as defined in the Original Credit Agreement), to the extent not
expressly superseded by documents, instruments and/or agreements delivered in
connection with this Agreement.
"Single Employer Plan" means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Site Management Agreements" means those certain leases, management
agreements or similar agreements pursuant to which Pinnacle Towers or any of its
Subsidiaries is authorized to sublease or otherwise broker space on any Tower
Properties.
"Standard Securitization Undertakings" means representations, warranties,
covenants and indemnities entered into or made by Pinnacle Towers or any of its
wholly owned Subsidiaries that are reasonably customary in transactions similar
to Permitted Securitizations.
"Subsidiary" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise specified, all references herein to a
"Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Subsidiary Guarantee" means a Guarantee made by a Subsidiary of the
Borrower in favor of the Administrative Agent for the benefit of the Lenders,
including the L/C Issuer, substantially in the form of Exhibit F-2, as the same
may be amended, supplemented or otherwise modified from time to time.
"Subsidiary Guarantors" means, collectively, Pinnacle Towers and each of
its Subsidiaries until the consummation of the Permitted Securitization, and
each other Subsidiary of the Borrower who is party to a Subsidiary Guarantee.
"Synthetic Lease" means any lease entered into in connection with the lease
or acquisition of fixed assets which is treated under GAAP as an operating lease
but for tax purposes as a capital lease.
"Taxes" has the meaning specified in Section 3.01(a).
"Term A Loan Commitment" means, as to each Lender, its obligation to make a
Term A Loan to the Borrower pursuant to Section 2.01(c)(i) in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.
"Term B Loan Availability Period" means the period from and including the
Closing Date to the earliest of (a) the Term Loan Maturity Date, (b) the date of
termination of the
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commitment of each Lender to make Term B Loans pursuant to Section 2.01(c)(ii)
and (iii) the date of termination of the commitment of each Lender to make Term
B Loans pursuant to Section 8.02.
"Term B Loan Commitment" means, as to each Lender, its obligation to make
Term B Loans to the Borrower pursuant to Section 2.01(c)(ii) in an aggregate
principal amount at any one time outstanding not to exceed the amount set forth
opposite such lender's name on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable, as such
amount may be adjusted from time to time in accordance with this Agreement.
"Term A Loans" has the meaning specified in Section 2.01(c)(i).
"Term B Loans" has the meaning specified in Section 2.01(c)(ii).
"Term Loan Maturity Date" means the earliest to occur of (i) August 14,
2005, (ii) the date on which Global Signal receives a refund of its $50,000,000
deposit under the Xxxx Xxxxx Transaction Agreement and (iii) the consummation of
the Xxxx Xxxxx Transaction.
"Term Loans" means the Term A Loans and Term B Loans.
"Threshold Amount" means with respect to Global Signal and its
Subsidiaries, $1,000,000.
"Total Outstandings" means the aggregate Outstanding Amount of all Term
Loans and the Revolving Outstandings.
"Tower Properties" means all fee interest, leasehold interest or easement
interest in any real property that supports a Tower.
"Towers" means (i) any wireless communications towers owned, leased or
managed (or to be owned, leased or managed) by any Subsidiary of the Borrower,
including any rooftop or other sites owned, leased or managed by such
Subsidiary, together with any real estate, fixtures and appurtenances that
accompany the towers, rooftops or other sites, and (ii) any fee simple interest,
ground lease, sub-ground lease, long-term easement, long-term sub-easement or
right to use and occupy in or on any real property on which wireless
communications towers are built.
"Transferee" has the meaning specified in Section 10.07.
"Type" means, with respect to a Loan, its character as a Base Rate Loan or
a Eurodollar Rate Loan.
"United Kingdom Subsidiaries" means, collectively, all direct or indirect
Subsidiaries of Global Signal organized under the laws of the United Kingdom,
including, without limitation, Pinnacle Towers Limited.
"United States" and "U.S." mean the United States of America.
24
"Unreimbursed Amount" has the meaning specified in Section 2.03(c)(i).
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other
Loan Document:
(a) The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." The word "will" shall be
construed to have the same meaning and effect as the word "shall." Unless the
context requires otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Governing Document) shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented, restated or otherwise modified (subject to
any restrictions on such amendments, supplements, restatements or modifications
set forth herein or in any other Loan Document), (ii) any reference herein to
any Person shall be construed to include such Person's successors and assigns,
(iii) the words "herein," "hereof" and "hereunder," and words of similar import
when used in any Loan Document, shall be construed to refer to such Loan
Document in its entirety and not to any particular provision thereof, (iv) all
references in a Loan Document to Articles, Sections, Exhibits and Schedules
shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any
reference to any law shall include all statutory and regulatory provisions
consolidating, amending replacing or interpreting such law and any reference to
any law or regulation shall, unless otherwise specified, refer to such law or
regulation as amended, modified or supplemented from time to time, and (vi) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
(b) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(c) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) Generally. All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.
(b) Changes in GAAP. If at any time any change in GAAP would affect
the computation of any financial ratio or requirement set forth in any Loan
Document, and either the Borrower or the Required Lenders shall so request, the
Administrative Agent, the Lenders and the Borrower shall negotiate in good faith
to amend such ratio or requirement to preserve the
25
original intent thereof in light of such change in GAAP (subject to the approval
of the Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Borrower shall provide to the Administrative Agent
and the Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.06 LETTER OF CREDIT AMOUNTS. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
1.07 EFFECT OF AMENDMENT AND RESTATEMENT. On the Closing Date, the
indebtedness and other liabilities of the Borrower previously governed by the
Original Credit Agreement shall continue in full force and effect, but shall be
governed by the terms and conditions set forth in this Agreement. Such
liabilities, together with any and all additional liabilities incurred by the
Borrower hereunder or under any of the other Loan Documents, shall continue to
be secured, by, among other things, the Collateral, whether now existing or
hereafter acquired and wheresoever located, all as more specifically set forth
in the Security Documents. Borrower hereby reaffirms its obligations,
liabilities, grants of security interests, pledges and the validity of all
covenants by the Borrower contained in any and all Security Documents. The
execution and delivery of this Agreement shall not constitute a novation or
repayment of the indebtedness outstanding under the Original Credit Agreement.
Borrower hereby acknowledges and agrees that on and after the Closing Date any
and all references in any Loan Documents to the Original Credit Agreement shall
be deemed to be amended to refer to this Agreement. Borrower hereby reaffirms
its obligations, liabilities and indebtedness arising under each of the Loan
Documents existing on the date hereof (as amended or otherwise modified through
and including the Closing Date), in each case after giving effect to the
provisions of the preceding sentence.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 LOANS. Subject to the terms and conditions set forth herein,
including, without limitation, the next succeeding paragraph, each Lender
severally agrees as follows:
26
(a) REVOLVING LOANS. Each Lender will make revolving loans (each such
loan, a "Revolving Loan") to the Borrower from time to time, on any Business Day
during the Revolving Loan Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender's Revolving Commitment;
provided, however, that after giving effect to any such Borrowing, (i) the
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments, and
(ii) the aggregate Outstanding Amount of the Revolving Loans of any Lender, plus
such Lender's Applicable Revolving Percentage of the Outstanding Amount of all
L/C Obligations shall not exceed such Lender's Revolving Commitment. Within the
limits of each Lender's Revolving Commitment, and subject to the other terms and
conditions hereof, the Borrower may borrow Revolving Loans under this Section
2.01(a), prepay Revolving Loans under Section 2.05, and reborrow Revolving Loans
under this Section 2.01(a). Revolving Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.
(b) XXXXXX XXXXXXX PARTICIPATIONS. Notwithstanding the foregoing,
prior to the occurrence of any Event of Default, Xxxxxx Xxxxxxx (but no other
Lender, by assignment or otherwise) shall not be required to make any Revolving
Loans pursuant to this Section 2.01 or any Revolving Loans or L/C Advances
pursuant to Sections 2.03(c)(ii) and (iii), and Bank of America, as a Lender,
hereby agrees to make such Revolving Loans and L/C Advances otherwise required
to be made by Xxxxxx Xxxxxxx, as a Lender (and its successors and assigns
permitted pursuant to Section 10.06(a)), pursuant to the terms of this
Agreement, but shall be required, and hereby agrees, to purchase a participation
interest (each a "Xxxxxx Xxxxxxx Participation") in any such Revolving Loans or
L/C Advances made on its behalf by Bank of America, as Lender, each in an amount
equal to Xxxxxx Xxxxxxx'x Applicable Revolving Percentage; provided, however,
that in the event Bank of America, as a Lender or LC Issuer, makes a Credit
Extension after receipt by the Administrative Agent and Bank of America of
written notice from Xxxxxx Xxxxxxx prior to the proposed time for any such
Credit Extension of its reasonable determination that the conditions contained
in Section 4.02 have not been met with respect to any such Credit Extension,
Xxxxxx Xxxxxxx will not have been deemed to purchase a Xxxxxx Xxxxxxx
Participation with respect to any such Credit Extension. Further, prior to the
occurrence of any Event of Default, (i) Xxxxxx Xxxxxxx shall not be deemed a
Defaulting Lender hereunder for not making such Revolving Loans or L/C Advances
prior to the occurrence of an Event of Default and (ii) Xxxxxx Xxxxxxx'x
Commitment and the portion of the Revolving Outstandings held or deemed held by
it via each Xxxxxx Xxxxxxx Participation shall be included for the purposes of
making a determination of Required Revolving Lenders. Upon the occurrence of any
Event of Default, Xxxxxx Xxxxxxx shall immediately fund each Xxxxxx Xxxxxxx
Participation in any outstanding Revolving Loans or L/C Advances in an amount
equal to its Applicable Revolving Percentage of the Revolving Outstandings to
the Administrative Agent in immediately available funds at the Administrative
Agent's Office for the account of Bank of America, as Lender, and, automatically
and without any further action, shall have all rights, responsibilities and
obligations under this Agreement as a Lender, including, without limitation, its
obligations to make Revolving Loans under this Section 2.01, and purchase risk
participations in Letters of Credit and make Revolving Loans and L/C Advances as
required under Sections 2.03. If Xxxxxx Xxxxxxx fails to fund any Xxxxxx Xxxxxxx
Participation in any outstanding Revolving Loans or L/C Advances, it shall be a
Defaulting Lender hereunder, and subject to the provisions of Section
2.12(b)(c)(iv), and Sections 2.03(c)(iv), (v) and (vi), respectively, and any
other similar provisions under this Agreement.
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(c) TERM LOANS.
(i) Each Lender party to the Original Credit Agreement made a
term A loan (the "Term A Loans") to the Borrower on the First Amendment
Closing Date, in an aggregate amount not to exceed the amount of such
Lender's Term A Loan Commitment. The Aggregate Term A Loan Commitments
terminated concurrently with the making of the Term A Loans on the First
Amendment Closing Date. Any portion of the Term A Loans which is repaid or
prepaid by the Borrower may not be reborrowed. Term A Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.
(ii) Each Lender will make a term B loan (the "Term B Loans") to
the Borrower from time to time, on any Business Day during the Term B Loan
Availability Period, in an aggregate amount not to exceed the amount of
such Lender's Term B Loan Commitment. Concurrently with the making of any
Term B Loans to the Borrower on any Business Day, a portion of the
Aggregate Term B Loan Commitments shall automatically terminate in an
amount equal to the principal amount of Term B Loans made on any such
Business Day. Any portion of the Term B Loans which is repaid or prepaid by
the Borrower may not be reborrowed. Term B Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be given by telephone.
Each such notice must be received by the Administrative Agent not later than
11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof; provided, however
that each Borrowing of Term B Loans shall be in a principal amount of $5,000,000
or a whole multiple of $500,000 in excess thereof. Except as provided in
Sections 2.03(c) and 2.04(c), each Borrowing of or conversion to Base Rate Loans
shall be in a principal amount of $100,000 or a whole multiple of $50,000 in
excess thereof. Each Loan Notice (whether telephonic or written) shall specify
(i) whether the Borrower is requesting a Borrowing, a conversion of Loans from
one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Class and Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails
to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a
timely notice requesting a conversion or continuation, then the applicable Loans
shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
28
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one
month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Applicable Percentage of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Business Day specified in the applicable Loan Notice. Upon satisfaction of
the applicable conditions set forth in Section 4.02, the Administrative Agent
shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such funds or (ii)
wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable in form and substance to) the
Administrative Agent by the Borrower; provided, however, that if, on the date
the Loan Notice with respect to such Borrowing is given by the Borrower, there
are L/C Borrowings outstanding, then the proceeds of such Borrowing, first,
shall be applied to the payment in full of any such L/C Borrowings, and second,
shall be made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Term A Loan Lenders with respect to the Term A Loans,
the Required Term B Loan Lenders with respect to the Term B Loans, or the
Required Revolving Loan Lenders with respect to the Revolving Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate. At any time that Base Rate
Loans are outstanding, the Administrative Agent shall notify the Borrower and
the Lenders of any change in Bank of America's prime rate used in determining
the Base Rate promptly following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than ten Interest Periods in effect with respect to Loans.
2.03 LETTERS OF CREDIT.
(a) The Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, (A) the L/C
Issuer agrees, in reliance upon the agreements of the Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day during the
period from the Original Closing Date until the Letter of Credit Expiration
Date, to issue Letters of Credit for the account of
29
the Borrower or its Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2)
to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account
of the Borrower or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (x) the Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments and (y) the aggregate Outstanding Amount of
the Revolving Loans of any Lender, plus such Lender's Applicable Revolving
Percentage of the Outstanding Amount of all L/C Obligations shall not
exceed such Lender's Revolving Commitment. As of the Closing Date, the
Original Letters of Credit listed on Schedule 2.03 are outstanding under
the Original Credit Agreement. The Borrower, Lenders and the L/C Issuer
agree that on the Closing Date, the Original Letters of Credit shall be
deemed to be Letters of Credit issued by the L/C Issuer under this
Agreement. Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Borrower
that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso to the preceding sentence. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's
ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters
of Credit to replace Letters of Credit that have expired or that have been
drawn upon and reimbursed.
(ii) The L/C Issuer shall not issue any Letter of Credit, if:
(A) the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance or last
extension, unless all the Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless such Letter
of Credit is Cash Collateralized as required pursuant to Section
2.03(g).
(iii) The L/C Issuer shall not be under any obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental Authority
or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to
the L/C Issuer or any request or directive (whether or not having the
force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain
from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect
to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated
hereunder) not in effect on the Closing Date, or shall impose upon the
L/C Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the L/C Issuer in good xxxxx
xxxxx material to it;
30
(B) the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent and
the L/C Issuer, such Letter of Credit is in an initial stated amount
less than $2,000;
(D) such Letter of Credit is to be denominated in a currency
other than Dollars;
(E) a default of any Lender's obligations to fund under Section
2.03(c) exists or any Lender is at such time a Defaulting Lender
hereunder, unless the L/C Issuer has entered into satisfactory
arrangements with the Borrower or such Lender to eliminate the L/C
Issuer's risk with respect to such Lender.
(iv) The L/C Issuer shall not amend any Letter of Credit if the L/C
Issuer would not be permitted at such time to issue such Letter of Credit
in its amended form under the terms hereof.
(v) The L/C Issuer shall be under no obligation to amend any Letter of
Credit if (A) the L/C Issuer would have no obligation at such time to issue
such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.
(vi) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith,
and the L/C Issuer shall have all of the benefits and immunities (A)
provided to the Administrative Agent in Article IX with respect to any acts
taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and Issuer Documents
pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in Article IX included the L/C Issuer with
respect to such acts or omissions, and (B) as additionally provided herein
with respect to the L/C Issuer.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the case may
be, upon the request of the Borrower delivered to the L/C Issuer (with a
copy to the Administrative Agent) in the form of a Letter of Credit
Application, appropriately completed and signed by a Responsible Officer of
the Borrower. Such Letter of Credit Application must be received by the L/C
Issuer and the Administrative Agent not later than 11:00 a.m. at least two
Business Days (or such later date and time as the Administrative Agent and
the L/C Issuer may agree in a particular instance in their sole discretion)
prior to the proposed issuance date or date of amendment, as the case may
be. In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the L/C Issuer: (A) the proposed issuance date
of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of
the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing
31
thereunder; (G) evidence that such requested Letter of Credit has been Cash
Collateralized as required pursuant to Section 2.03(g); and (H) such other
matters as the L/C Issuer may reasonably require. In the case of a request
for an amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to the
L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may
reasonably require, including, if necessary, evidence of additional amounts
deposited to fully Cash Collateralize the Letter of Credit as required
pursuant to Section 2.03(g). Additionally, the Borrower shall furnish to
the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C Issuer will
provide the Administrative Agent with a copy thereof. Unless the L/C Issuer
has received written notice from any Lender, the Administrative Agent or
any Loan Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on
the requested date, issue a Letter of Credit for the account of the
Borrower (or the applicable Subsidiary) or enter into the applicable
amendment, as the case may be, in each case in accordance with the L/C
Issuer's usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C
Issuer a risk participation in such Letter of Credit in an amount equal to
the product of such Lender's Applicable Revolving Percentage times the
amount of such Letter of Credit.
(iii) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or
to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit of any
notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an "Honor Date"), the Borrower shall reimburse the
L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each
Lender of the Honor Date, the amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and the amount of such Lender's Applicable
Revolving Percentage thereof. In such event, the Borrower shall
32
be deemed to have requested a Borrowing of Base Rate Loans to be disbursed
on the Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.02 for the
principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Revolving Commitments and the
conditions set forth in Section 4.02 (other than the delivery of a Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.
(ii) Subject to Section 2.01(b), each Lender shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the Administrative
Agent for the account of the L/C Issuer at the Administrative Agent's
Office in an amount equal to its Applicable Revolving Percentage of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to
the L/C Issuer.
(iii) Subject to Section 2.01(b), with respect to any Unreimbursed
Amount that is not fully refinanced by a Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 cannot be satisfied or for
any other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default
Rate. In such event, each Lender's payment to the Administrative Agent for
the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.
(iv) Subject to Section 2.01(b), until each Lender funds its Loan or
L/C Advance pursuant to this Section 2.03(c) to reimburse the L/C Issuer
for any amount drawn under any Letter of Credit, interest in respect of
such Lender's Applicable Revolving Percentage of such amount shall be
solely for the account of the L/C Issuer.
(v) Subject to Section 2.01(b), each Lender's obligation to make Loans
or L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters
of Credit, as contemplated by this Section 2.03(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A)
any setoff, counterclaim, recoupment, defense or other right which such
Lender may have against the L/C Issuer, the Borrower or any other Person
for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided, however, that each Lender's obligation to
make Loans pursuant to this Section 2.03(c) is subject to the conditions
set forth in Section 4.02 (other than delivery by the Borrower of a Loan
Notice). No such making of an L/C Advance shall relieve or otherwise impair
the obligation of the Borrower to reimburse the L/C Issuer for
33
the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.
(vi) Subject to Section 2.01(b), if any Lender fails to make available
to the Administrative Agent for the account of the L/C Issuer any amount
required to be paid by such Lender pursuant to the foregoing provisions of
this Section 2.03(c) by the time specified in Section 2.03(c)(ii), the L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such
payment is immediately available to the L/C Issuer at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the
L/C Issuer in accordance with banking industry rules on interbank
compensation. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under
this clause (vi) shall be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with Section 2.03(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment
in respect of the related Unreimbursed Amount or interest thereon (whether
directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Revolving Percentage
thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C Advance was
outstanding) in the same funds as those received by the Administrative
Agent.
(ii) If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is required to be
returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Applicable Revolving Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned by such Lender, at a rate
per annum equal to the Federal Funds Rate from time to time in effect. The
obligations of the Lenders under this clause shall survive the payment in
full of the Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to reimburse the
L/C Issuer for each drawing under each Letter of Credit and to repay each L/C
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including the following:
(i) any lack of validity or enforceability of such Letter of Credit,
this Agreement, or any other Loan Document;
34
(ii) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrower or any Subsidiary may have at any time
against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting),
the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit
or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under
such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying
any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the request
or with the approval of the Lenders or the Required Revolving Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of
Credit; provided, however, that this assumption is not intended to, and shall
not, preclude the Borrower's pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement. None
of the L/C Issuer, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant
35
or assignee of the L/C Issuer shall be liable or responsible for any of the
matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as
opposed to consequential or exemplary, damages suffered by the Borrower which
the Borrower proves were caused by the L/C Issuer's willful misconduct or gross
negligence or the L/C Issuer's willful failure to pay under any Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. The Borrower shall Cash Collateralize each requested
Letter of Credit with an expiry date that would occur after the Letter of Credit
Expiration Date (or requested increases in the face amount of any such
outstanding Letter of Credit) prior to or simultaneously with the submission of
any Letter of Credit Application delivered to the L/C Issuer pursuant to Section
2.03(b) in an amount equal to 104% of the face amount of such requested Letter
of Credit or outstanding Letter of Credit, as the case may be. Further, upon the
request of the Administrative Agent, as to any L/C Obligation not Cash
Collateralized pursuant to the previous sentence, (i) if the L/C Issuer has
honored any full or partial drawing request under any Letter of Credit and such
drawing has resulted in an L/C Borrowing, (ii) if, as of the Letter of Credit
Expiration Date, any such L/C Obligation for any reason remains outstanding, or
(iii) if, as of the fifteenth day prior to the current Revolving Maturity Date,
the Borrower has not received, to the satisfaction of the Administrative Agent,
firm commitments from the Lenders to extend such Revolving Maturity Date for at
least another 364 days, and firm commitments from the Lenders and any financial
institutions not party to this Agreement on such date, but who have committed to
become Lenders under this Agreement when extended by an additional 364 days, in
an amount not less than the Outstanding Amount of all L/C Obligations, the
Borrower shall, in each case, immediately Cash Collateralize any such
Outstanding Amount of all L/C Obligations that has not been previously Cash
Collateralized. Sections 2.05(b) and 8.02(c) set forth certain additional
requirements to deliver Cash Collateral hereunder. For purposes of this Section
2.03, Section 2.05(b) and Section 8.02(c), "Cash Collateralize" means to pledge
and deposit with or deliver to the Administrative Agent, for the benefit of the
L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or
deposit account balances pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the L/C Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term have
corresponding meanings. The Borrower hereby grants to the Administrative Agent,
for the benefit of the L/C Issuer and the Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing
deposit accounts at Bank of America.
(h) Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP
shall apply to each standby Letter of Credit.
36
(i) Letter of Credit Fees. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable Revolving
Percentage a Letter of Credit fee (the "Letter of Credit Fee") for each Letter
of Credit equal to the Applicable Rate times the daily amount available to be
drawn under such Letter of Credit. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06. Letter of Credit
Fees shall be (i) computed on a quarterly basis in arrears and (ii) due and
payable on the first Business Day after the end of each March, June, September
and December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Revolving Lenders, while any Event of Default exists,
all Letter of Credit Fees shall accrue at the Default Rate. Notwithstanding the
foregoing, the Administrative Agent shall disperse the Letter of Credit Fee
among the applicable Lenders in accordance with the Lender Fee Letter.
(j) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own account a
fronting fee with respect to each Letter of Credit, at the rate per annum equal
to 0.125%, computed on the daily amount available to be drawn under such Letter
of Credit on a quarterly basis in arrears, and due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. In addition, the Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect. Such customary
fees and standard costs and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall
control.
(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrower shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrower, and that the Borrower's business derives substantial benefits from the
businesses of such Subsidiaries.
2.04 [INTENTIONALLY OMITTED.]
2.05 PREPAYMENTS.
(a) Optional Prepayments. The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay Loans
in whole or in part without premium or penalty; provided that (i) such notice
must be received by the Administrative Agent not later than 11:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurodollar
37
Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof; and (iii) any prepayment of
Base Rate Loans shall be in a principal amount of $100,000 or a whole multiple
of $50,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender's Applicable Percentage of such
prepayment. If such notice is given by the Borrower, the Borrower shall make
such prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.04. Each such
prepayment shall be applied to the Loans of the Lenders in accordance with their
respective Applicable Percentages.
(b) Mandatory Prepayments.
(i) If for any reason the Revolving Outstandings at any time exceed
the Aggregate Revolving Commitments then in effect, the Borrower shall
immediately prepay Revolving Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however,
that the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment
in full of the Revolving Loans the Revolving Outstandings exceed the
Aggregate Revolving Commitments then in effect.
(ii) If on any date the Borrower or any of its Subsidiaries (except
its Excluded Subsidiaries, and Pinnacle Towers and its Subsidiaries prior
to the date of the Permitted Securitization) shall receive Net Cash
Proceeds from (A) any incurrence of Indebtedness by the Borrower or any
such Subsidiaries, other than Indebtedness permitted pursuant to Section
7.01, (B) any Asset Sale, the Net Cash Proceeds of which, when taken
together with the Net Cash Proceeds of all other Asset Sales consummated
from the Closing Date, exceed $1,000,000 or (C) any Extraordinary Receipts,
the Net Cash Proceeds of which exceed $50,000 from any individual or series
of events, then 100% of such Net Cash Proceeds (1) shall be applied on the
third Business Day following receipt of such Net Cash Proceeds toward the
prepayment of the Loans, or (2) if no there are Loans outstanding, shall be
used to Cash Collateralize the Letters of Credit.
(iii) If on any date the Borrower or any of its Subsidiaries (except
its Excluded Subsidiaries, and Pinnacle Towers and its Subsidiaries prior
to the date of the Permitted Securitization) shall receive Net Cash
Proceeds from any Recovery Event, 100% of such Net Cash Proceeds shall be
applied on the third Business Day following receipt of such Net Cash
Proceeds toward the prepayment of the Loans, or, if there are no Loans
outstanding, to Cash Collateralize the Letters of Credit; provided that
such prepayment shall not be required if all of the following requirements
are satisfied: (i) the aggregate amount of all such Net Cash Proceeds is
not greater than $5,000,000, (ii) such Net Cash Proceeds are (A) reinvested
in other like assets within 180 days of the Recovery Event that gave rise
to such Net Cash Proceeds or (B) committed to be reinvested in other like
assets within 180 days of such Recovery Event and reinvested in such assets
within 270 days of
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such Recovery Event, (iii) such Net Cash Proceeds are held in a segregated
deposit account that is subject to a perfected first priority security
interest in favor of Administrative Agent for the benefit of the Agents and
the Lenders, and (iv) the reinvestment or commitment to reinvest such Net
Cash Proceeds pursuant to clause (ii) above is pre-approved in writing by
the Required Lenders in their reasonable discretion.
2.06 TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS. On the earlier to
occur of (i) the date that is six months from the Original Closing Date and (ii)
the date of any issuance of the Capital Stock of Global Signal (other than as a
result of the exercise of any options or warrants outstanding on the date hereof
or any issuance of Capital Stock in connection with the consummation of the Xxxx
Xxxxx Transaction), the aggregate Net Cash Proceeds of which exceed $5,000,0000,
the Borrower shall permanently reduce the Aggregate Revolving Commitments, after
giving effect thereto and to any concurrent prepayments hereunder, to an amount
not to exceed $15,000,000. Further, the Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Revolving Commitments, or from
time to time permanently reduce the Aggregate Revolving Commitments; provided
that (i) any such notice shall be irrevocable and shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $500,000 or any whole multiple of $100,000 in excess
thereof, and (iii) the Borrower shall not terminate or reduce the Aggregate
Revolving Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Revolving Outstandings would exceed the Aggregate
Revolving Commitments. The Administrative Agent will promptly notify the Lenders
of any such notice of termination or reduction of the Aggregate Revolving
Commitments. Any reduction of the Aggregate Revolving Commitments shall be
applied to the Revolving Commitment of each Lender according to its Applicable
Revolving Percentage. All fees accrued until the effective date of any
termination of the Aggregate Revolving Commitments shall be paid on the
effective date of such termination.
2.07 REPAYMENT OF LOANS. Subject to Section 8.02, The Borrower shall repay
to the Lenders (i) on the Term Loan Maturity Date the aggregate principal amount
of the Term Loans outstanding on such date, together with all accrued and unpaid
interest thereon and (ii) on the Revolving Loan Maturity Date the aggregate
principal amount of Loans outstanding on such date, together with any other
unpaid Obligations.
2.08 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Rate; and (ii) each Base Rate Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate plus the Applicable
Rate. Notwithstanding the foregoing, the Administrative Agent shall distribute
the amounts paid in respect of the Revolving Loans pursuant to this Section
2.08(a) among the Lenders in accordance with the Lender Fee Letter.
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(b) (i) If any amount of principal of any Loan is not paid when due
(without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.
(ii) If any amount (other than principal of any Loan) payable by the
Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration
or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event of
Default exists, the Borrower shall pay interest on the principal amount of
all outstanding Obligations hereunder at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts (including
interest on past due interest) shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.09 FEES. In addition to certain fees described in subsections (i) and (j)
of Section 2.03:
(a) Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Applicable Revolving
Percentage, a facility fee with respect to the Aggregate Revolving Commitments
(the "Revolving Facility Fee") equal to the Applicable Rate times the sum of the
actual daily amount of the Aggregate Revolving Commitments (or, if the Aggregate
Revolving Commitments have terminated, on the sum of the Outstanding Amount of
all Revolving Loans), regardless of usage. The Revolving Facility Fee shall
accrue at all times during the Revolving Loan Availability Period (and
thereafter so long as any Revolving Loans or L/C Obligations remain
outstanding), including at any time during which one or more of the conditions
in Article IV is not met, and shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, commencing
with the first such date to occur after the Original Closing Date, and on the
Maturity Date (and, if applicable, thereafter on demand). The Revolving Facility
Fee shall be calculated quarterly in arrears. Notwithstanding the foregoing, the
Administrative Agent shall disburse the Revolving Facility Fee among the Lenders
in accordance with the Lender Fee Letter.
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(b) Other Fees. (i) The Borrower shall pay to the Administrative Agent for
its own account fees in the amounts and at the times specified in the Fee
Letter. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall have
been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.
2.10 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day. Each determination by the Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding for all purposes,
absent manifest error.
2.11 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by
the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Credit Extensions made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender's
Loans in addition to such accounts or records. Each Lender may attach schedules
to its Note and endorse thereon the date, Type (if applicable), Class, amount
and maturity of its Loans and payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit. In the event of any conflict
between the accounts and records maintained by the Administrative Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error.
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2.12 PAYMENTS GENERALLY; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Applicable Percentage (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer to such
Lender's Lending Office. All payments received by the Administrative Agent after
2:00 p.m. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made
by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be. Notwithstanding the
foregoing, the Administrative Agent shall disperse the any payments hereunder
among the Lenders in accordance with the Lender Fee Letter.
(b) (i) Funding by Lenders; Presumption by Administrative Agent. Subject to
Section 2.01(b), unless the Administrative Agent shall have received notice from
a Lender prior to the proposed time of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount in immediately available funds
with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such Lender,
the greater of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender's Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.
(ii) Payments by Borrower; Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the
42
Lenders or the L/C Issuer, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to
such Lender or the L/C Issuer, in immediately available funds with interest
thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (b) shall be conclusive,
absent manifest error.
(c) Failure to Satisfy Conditions Precedent. If any Lender makes available
to the Administrative Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds are not
made available to the Borrower by the Administrative Agent because the
conditions to the applicable Credit Extension set forth in Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall promptly return such funds (in like funds as received from such
Lender) to such Lender, without interest.
(d) Obligations of Lenders Several. The obligations of the Lenders
hereunder to make Loans, to fund participations in Letters of Credit and to make
payments pursuant to Section 10.04(c) are several and not joint. The failure of
any Lender to make any Loan, to fund any such participation or to make any
payment under Section 10.04(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no
Lender shall be responsible for the failure of any other Lender to so make its
Loan, to purchase its participation or to make its payment under Section
10.04(c).
(e) Funding Source. Nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13 SHARING OF PAYMENTS BY LENDERS. If any Lender shall, by exercising any
right of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of the Loans made by it, or the participations
in L/C Obligations held by it, resulting in such Lender's receiving payment of a
proportion of the aggregate amount of such Loans or participations and accrued
interest thereon greater than its pro rata share thereof as provided herein,
then the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans and subparticipations in L/C Obligations of the
other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:
43
(i) if any such participations or subparticipations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations or subparticipations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
(ii) the provisions of this Section 2.13 shall not be construed to
apply to (x) any payment made by the Borrower pursuant to and in accordance
with the express terms of this Agreement or (y) any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in
any of its Loans or subparticipations in L/C Obligations to any assignee or
participant, other than to the Borrower or any Subsidiary thereof (as to
which the provisions of this Section 2.13 shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower under or in respect of this
Agreement or any other Loan Documents to which the Borrower is a party shall be
made free and clear of, and without deduction or withholding for or on account
of, any and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities (including penalties, interest and additions
to tax) with respect thereto, whether now or hereafter imposed, levied,
collected, withheld or assessed by any taxation authority or other Governmental
Authority (collectively, "Taxes"), unless required by law. If the Borrower shall
be required under any applicable Requirement of Law to deduct or withhold any
Taxes from or in respect of any sum payable under or in respect of this
Agreement or any of the other Loan Documents to any Lender, (i) Borrower shall
make all such deductions and withholdings in respect of Taxes, (ii) Borrower
shall pay the full amount deducted or withheld in respect of Taxes to the
relevant taxation authority or other Governmental Authority in accordance with
the applicable Requirement of Law, and (iii) the sum payable by Borrower shall
be increased as may be necessary so that after Borrower has made all required
deductions and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section 3.01) such Lender receives an amount
equal to the sum it would have received had no such deductions or withholdings
been made in respect of Non-Excluded Taxes. For purposes of this Agreement and
except as otherwise provided in Section 3.01(f) and Section 3.01(g), the term
"Non-Excluded Taxes" are Taxes other than, in the case of each Lender, Taxes
that are imposed on or measured by its overall net income (including franchise
taxes imposed in lieu thereof and branch profit taxes, and including penalties,
interest and additions to Tax with respect thereto), by the jurisdiction under
the laws of which such Lender is organized or of its Applicable Lending Office,
or any political subdivision thereof, unless Taxes are imposed as a result of a
connection that arises solely from such Lender having executed, delivered or
performed its obligations or
44
received payments under, or enforced, this Agreement or any of the other Loan
Documents (in which case such Taxes will be treated as Non-Excluded Taxes).
(b) In addition, Borrower hereby agrees to pay any present or future stamp,
recording, documentary, excise, property or similar taxes, charges or levies
that arise from any payment made under or in respect of this Agreement or any
other Loan Document or from the execution, delivery or registration of, any
performance under, or otherwise with respect to, this Agreement or any other
Loan Document (collectively, "Other Taxes").
(c) Borrower hereby agrees to indemnify each Lender for, and to hold each
of them harmless against, the full amount of Non-Excluded Taxes and Other Taxes,
and the full amount of Taxes of any kind imposed on or paid by such Lender, and
any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto, in each case, imposed by any
jurisdiction on amounts payable under this Section 3.01. The indemnity by
Borrower provided for in this Section 3.01(c) shall apply and be made whether or
not the Non-Excluded Taxes or Other Taxes for which indemnification hereunder is
sought have been correctly or legally asserted. Amounts payable by Borrower
under the indemnity set forth in this Section 3.01(c) shall be paid within ten
(10) days from the date on which the applicable Lender, as the case may be,
makes written demand therefor, and provides to Borrower any notice or assessment
made for such Non-Excluded Taxes or Other Taxes received by such Lender from a
Governmental Authority or tax authority.
(d) Any Lender that receives additional payments from the Borrower pursuant
to Sections 3.01(a), (b) or (c) shall take all reasonable actions (consistent
with its internal policy and legal and regulatory restrictions) requested by
Borrower to assist Borrower, as the case may be, at the sole expense of
Borrower, to recover from the relevant taxation authority or other Governmental
Authority any Taxes in respect of which amounts were paid by Borrower pursuant
to Sections 3.01(a), (b) or (c). However, such Lender will not be required to
take any action that would be, in the sole judgment of such Lender, legally
inadvisable, or commercially or otherwise disadvantageous to such Lender in any
respect, and in no event shall such Lender be required to disclose any tax
returns or any other information that, in the sole judgment of such Lender is
confidential.
(e) Within 30 days after the date of any payment of Taxes pursuant to
Section 3.01, Borrower (or any Person making such payment on behalf of Borrower)
shall furnish to the applicable Lender a certified copy of the original official
receipt evidencing payment thereof. In the case of any payment under or in
respect of this Agreement or any of the other Loan Documents by or on behalf of
Borrower through an account or branch outside the United States, or on behalf of
Borrower by a payor that is not a United States person, if Borrower determines
that no Taxes are payable in respect thereof, Borrower shall furnish, or shall
cause such payor to furnish, to the applicable Lender an opinion of counsel
reasonably acceptable to the applicable Lender stating that such payment is
exempt from Taxes. For purposes of this Section 3.01(e) and subsection (f) of
this Section 3.01, the terms "United States" and "United States person" shall
have the meanings specified in Section 7701 of the Internal Revenue Code.
(f) On or before the first payment date hereunder to which each Lender
(including any participant, assignee or successor) is entitled, and from time to
time thereafter if requested in
45
writing by Borrower (but only so long as such Lender remains lawfully able to do
so), any Lender that either (i) is not incorporated under the laws of the United
States, any State thereof, or the District of Columbia or (ii) whose name does
not include "Incorporated," "Inc.," "Corporation," "Corp.," "P.C.," "insurance
company," or "assurance company" (a "Non-Exempt Lender"), shall deliver or cause
to be delivered to Borrower the following properly completed and duly executed
documents:
(i) a complete and executed (x) U.S. Internal Revenue Form W-8BEN with
Part II completed in which a Lender claims the benefits of a tax treaty
with the United States providing for a reduced or zero rate of withholding
(or any successor forms thereto), including all appropriate attachments or
(y) a U.S. Internal Revenue Service Form W-8ECI (or any successor form
thereto); or
(ii) in the case of an individual, (x) a complete and executed U.S.
Internal Revenue Service Form W-8BEN (or any successor forms thereto) and a
certificate substantially in the form of Exhibit G (a "Section 3.01
Certificate") or (y) a complete and executed Internal Revenue Service Form
W-9 (or any successor form thereto); or
(iii) in the case of a Non-Exempt Lender that is organized under the
laws of the United States, any State thereof, or the District of Columbia,
(x) a complete and executed Internal Revenue Service Form W-9 (or any
successor forms thereto), including all appropriate attachments or (y) if
such Non-Exempt Lender is disregarded for federal income tax purposes, the
documents that would be required by clause (1), (2), (3), (4) or (5) with
respect to its beneficial owner if such beneficial owner were Lender; or
(iv) in the case of a Non-Exempt Lender that (i) is not organized
under the laws of the United States, any State thereof, or the District of
Columbia, and (ii) is treated as a corporation for U.S. federal income tax
purposes, a complete and executed U.S. Internal Revenue Service Form W-8BEN
claiming a zero rate of withholding (or any successor forms thereto) and a
Section 3.01 Certificate; or
(v) in the case of a Non-Exempt Lender that (A) is treated as a
partnership or other non-corporate entity, or is disregarded for U.S.
federal income tax purposes, and (B) is not organized under the laws of the
United States, any State thereof, or the District of Columbia, a (x) a
complete and executed Internal Revenue Service Form W-8IMY (including all
required documents and attachments) (or any successor form thereto), and
(y)(i) a Section 3.01 Certificate, and (ii) without duplication, with
respect to each of its beneficial owners and the beneficial owners of such
beneficial owners looking through chains of owners to individuals or
entities that are treated as corporations for U.S. federal income tax
purposes (all such owners, "beneficial owners"), the documents that would
be required by clause (1), (2), (3), (4) or this clause (5) with respect to
each such beneficial owner if such beneficial owner were a Lender;
provided, however, that no such documents will be required with respect to
a beneficial owner to the extent the actual Lender is determined to be in
compliance with the requirements for certification on behalf of its
beneficial owner as may be provided in applicable U.S. Treasury
regulations, or the requirements of this clause (5) are otherwise
determined to be unnecessary, all such determinations under this clause (5)
to be made in the sole discretion of Borrower.
46
If the forms referred to above in this Section 3.01(f) that are provided by
a Lender at the time such Lender first becomes a party to this Agreement
indicate a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be treated as Taxes other than "Non-Excluded
Taxes" ("Excluded Taxes") and shall not qualify as Non-Excluded Taxes unless and
until such Lender provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate shall be considered
Excluded Taxes solely for the periods governed by such form. If, however, on the
date of the Assignment and Acceptance pursuant to which a Lender assignee
becomes a party to this Agreement, Lender assignor was entitled to
indemnification or increased amounts under this Section 3.01, then the Lender
assignee shall be entitled to indemnification or increased amounts to the extent
(and only to the extent) that the Lender assignor was entitled to such
indemnification or increased amounts for Non-Excluded Taxes, and the Lender
assignee shall be entitled to additional indemnification or increased amounts
for any other or additional Non-Excluded Taxes. Any additional Taxes in respect
of a Lender that result solely and directly from a change in the Applicable
Lending Office of such Lender shall be treated as Excluded Taxes (and shall not
qualify as Non-Excluded Taxes) (A) except for any additional Non-Excluded Taxes
imposed as a result of a change in the applicable Requirement of Law, or in the
interpretation or application thereof, occurring after the date of such change
or (B) unless such change is made at the request of the Borrower for such Lender
to change its Applicable Lending Office.
(g) For any period with respect to which any Lender has failed to provide
Borrower with the appropriate form, certificate or other document described in
subsection (f) of this Section 3.01 (other than (i) if such failure is due to a
change in any applicable Requirement of Law, or in the interpretation or
application thereof, occurring after the date on which a form, certificate or
other document originally was required to be provided, (ii) if such form,
certificate or other document otherwise is not required under subsection (f) of
this Section 3.01 or (iii) if it is legally inadvisable or otherwise
commercially disadvantageous for such Lender to deliver such form, certificate
or other document), such Lender shall not be entitled to indemnification or
additional amounts under subsection (a) or (c) of this Section 3.01 with respect
to Non-Excluded Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender become subject to Non-Excluded Taxes
because of its failure to deliver a form, certificate or other document required
hereunder, Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender in recovering such Non-Excluded Taxes.
(h) The agreements in this Section 3.01 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
(i) For the purposes of this Section 3.01, references to the Lenders shall
be deemed to refer to the Lenders and/or the L/C Issuer, as applicable.
3.02 ILLEGALITY. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Rate Loans as contemplated by this Agreement, (a) the commitment of
such Lender hereunder to make Eurodollar Rate Loans and continue Eurodollar Rate
Loans as such shall forthwith be cancelled, and (b) such Lender's Loans then
outstanding as Eurodollar Rate Loans, if any, shall be converted automatically
to Base Rate Loans.
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3.03 INABILITY TO DETERMINE RATES. If on any day:
(a) the Administrative Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate; or
(b) the Administrative Agent shall have received notice from the Required
Lenders that the Eurodollar Rate determined or to be determined on such day will
not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their Eurodollar Rate Loans,
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower as soon as practicable thereafter. If such notice is given (x)
any Eurodollar Rate Loans under this Agreement requested to be made on such day
shall be made as Base Rate Loans, (y) any Base Rate Loans that were to have been
converted on such day to Eurodollar Rate Loans shall be continued as Base Rate
Loans, and (z) any outstanding Eurodollar Rate Loans shall be converted on such
day to Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Rate Loans under this Agreement
shall be made or continued as such. The Administrative Agent shall withdraw any
such notice pursuant to clause (a) above if the Administrative Agent determines
that the relevant circumstances have ceased to exist.
3.04 REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to (A) the date that such
Lender became a party to this Agreement, (B) with respect to a transfer or
assignment made pursuant to Section 10.06(b) or (d) hereof, the effective date
of such transfer or assignment, except to the extent that such Transferee's
predecessor was entitled to such amounts or (C) with respect to the designation
of a new lending office, the effective date of such designation:
(i) does or shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Eurodollar Rate Loan made
by it, or change the basis of taxation of payments to such Lender in
respect thereof (except for Non-Excluded Taxes resulting from such Lender's
failure to comply with the provisions of Section 3.01 hereof and changes in
the rate or manner of determination of tax on the overall net income of
such Lender together with, in each case, any interest, penalties or
additions to such taxes);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate; or
(iii) does or shall impose on such Lender any other condition;
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and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, continuing or
maintaining Eurodollar Rate Loans or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the Borrower shall promptly, after
receiving notice as specified in Section 3.04(c), pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or any change
in any Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Lender or any corporation controlling
such Lender with any request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority made subsequent to
the date hereof shall have the effect of reducing the rate of return on such
Lender's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, the
Borrower shall promptly pay to such Lender such additional amount or amounts as
will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts pursuant
to this Section 3.04, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
A certificate as to any additional amounts payable pursuant to this Section 3.04
submitted by such Lender to the Borrower (with a copy to the Administrative
Agent) shall be conclusive in the absence of manifest error. The agreements in
this Section 3.04 shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
(d) Any Lender, if claiming any additional amounts payable pursuant to
Section 3.01 or this Section 3.04, shall use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions and so long as, in its
sole determination, such efforts would not be disadvantageous to it) to file any
certificate or document reasonably requested in writing by the Borrower if the
making of such a filing would avoid the need for or reduce the amount of any
such additional amounts.
(e) For the purposes of this Section 3.04, references to the Lenders shall
be deemed to refer to the Lenders and/or the L/C Issuer, as applicable.
3.05 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE IV.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 CONDITIONS OF INITIAL TERM B LOAN CREDIT EXTENSION. The obligation of
each Lender to make its initial Term B Loan hereunder is subject to satisfaction
of the following conditions precedent:
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(a) The Administrative Agent's receipt of the following, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:
(i) executed counterparts of this Agreement, the Parent Guarantee
Second Amendment and the Reaffirmations, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) such certificates of resolutions or other action, incumbency
certificates Agent may require evidencing the identity, authority and
capacity of each Responsible Officer and/or other certificates of
Responsible Officers of each Loan Party as the Administrative Officer
thereof authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) such documents and certifications as the Administrative Agent may
reasonably require to evidence that each Loan Party is duly organized or
formed, and that each of the Borrower and the Guarantors is validly
existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect;
(v) favorable opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, New
York counsel to the Loan Parties addressed to the Administrative Agent and
each Lender as to such matters concerning the Loan Parties and the Loan
Documents as the Required Lenders may reasonably request;
(vi) a certificate of a Responsible Officer of the Borrower as to the
matters set forth in Section 5.04;
(vii) a certificate signed by a Responsible Officer of the Borrower
certifying (A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, and (B) that there has been no event or circumstance
since the date of the Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect;
(viii) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent, the L/C Issuer or the Required
Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by the Administrative Agent, the Borrower shall have paid
all fees, charges and disbursements of counsel to the Administrative Agent to
the extent invoiced prior to or on the Closing Date (provided that such invoice
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).
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Without limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section
4.01, each Lender that has signed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
4.02 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender to
honor any Request for Credit Extension (other than a Loan Notice requesting only
a conversion of Loans to the other Type, or a continuation of Eurodollar Rate
Loans) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower and each other Loan
Party contained in Article V or any other Loan Document shall be true and
correct in all material respects on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct in all material
respects as of such earlier date.
(b) No Default shall exist, or would result from such proposed Credit
Extension or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the L/C Issuer shall have
received a Request for Credit Extension in accordance with the requirements
hereof.
Each Request for Credit Extension (other than a Loan Notice requesting only
a conversion of Loans to the other Type or a continuation of Eurodollar Rate
Loans) submitted by the Borrower shall be deemed to be a representation and
warranty that the conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 FINANCIAL CONDITION. The unaudited consolidated balance sheet of
Global Signal and its consolidated Subsidiaries as at the end of each calendar
month from and after December 31, 2004 until the date hereof, and the related
consolidated statements of income and of cash flows for the calendar month ended
on such dates, certified by a Responsible Officer, copies of which have
heretofore been furnished to each Lender, are complete and correct in all
material respects and present fairly the consolidated condition of the Borrower
and its consolidated Subsidiaries as at such dates, and the consolidated results
of their operations and their consolidated cash flows for the calendar month
then ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP (except for, in the
case of any unaudited financial statements, the absence of footnotes and
quarterly and year-end adjustments) applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein). Neither the Borrower nor any of its
consolidated Subsidiaries had, at the date of the
51
most recent balance sheet referred to above, any material Guarantee Obligation,
Contingent Liability (other than earnouts pursuant to an Acquisition) or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any Hedge Agreement (other than those
Hedge Agreements with the Administrative Agent with trades dates of January 11,
2005, February 2, 2005 and March 21, 2005) or other financial derivative, which
is not reflected in the foregoing statements or in the notes thereto, subject to
normal year-end adjustments. During the period from December 31, 2004 to and
including the date hereof there has been no sale, transfer or other disposition
by Global Signal, the Borrower or any of their respective consolidated
Subsidiaries of any material part of its business or property (other than as
permitted hereunder) and no purchase or other acquisition of any business or
property (including any Capital Stock of any other Person), other than
Acquisitions, material in relation to the consolidating financial condition of
Global Signal and its consolidated Subsidiaries at December 31, 2004.
5.02 NO CHANGE. Since December 31, 2004, there has been no development or
event which has had or is reasonably expected to have a Material Adverse Effect.
5.03 EXISTENCE; COMPLIANCE WITH LAW. Each of the Borrower and its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the requisite power
and authority, and the legal right, to own and operate its property, to lease
the property it operates as lessee and to conduct the business in which it is
currently engaged, (c) is duly qualified as a limited liability company or
corporation, as applicable, and is in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, and (d) is in compliance with all
Requirements of Law, except to the extent that the failure to comply with any of
the foregoing is not, in the aggregate, reasonably expected to have a Material
Adverse Effect.
5.04 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The Borrower has the
limited partnership power and authority, and the legal right, to make, deliver
and perform the Loan Documents to which it is a party and to borrow hereunder
and has taken all necessary limited partnership company action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party. With respect to each other Loan Party, such Loan Party has the
limited liability company or corporate (as applicable) power and authority, and
the legal right, to make, deliver and perform the Loan Documents to which it is
a party and has taken all necessary limited liability company or corporate
action (as applicable) to authorize the execution, delivery and performance of
the Loan Documents to which it is a party. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which the Borrower is a party. This
Agreement has been, and each other Loan Document to which it is a party will be,
duly executed and delivered on behalf of the Borrower. This Agreement
constitutes, and each other Loan Document to which it is a party when executed
and delivered will constitute, a legal, valid and binding obligation of the
Borrower enforceable against the Borrower in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general
52
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
5.05 NO LEGAL BAR. The execution, delivery and performance of the Loan
Documents to which each of the Borrower and its Subsidiaries is a party, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of the Borrower or of any of its
Subsidiaries and will not result in, or require, the creation or imposition of
any Lien on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation (other than Liens created
by the Security Documents in favor of the Administrative Agent for the benefit
of the Administrative Agent and the Lenders).
5.06 NO MATERIAL LITIGATION. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Borrower, threatened by or against the Borrower or any of its
Subsidiaries or against any of its or their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby or (b) which is reasonably expected to have a
Material Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect which is reasonably expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
5.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each Subsidiary
has good record and marketable title in fee simple to, or valid leasehold
interests in, all real property (other than Towers subject to Site Management
Agreements) necessary or used in the ordinary conduct of its business, except
for such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The property of the
Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted
by Section 7.02.
5.09 INTELLECTUAL PROPERTY. Each of the Borrower and its Subsidiaries owns,
or is licensed to use, all trademarks, tradenames, copyrights, technology,
know-how and processes necessary for the conduct of its business as currently
conducted except for those of which the failure to so own or license are not
reasonably expected to have a Material Adverse Effect (the "Intellectual
Property"). No claim has been asserted and is pending by any Person challenging
or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, which, if successful, would
reasonably be expected to have a Material Adverse Effect, nor does the Borrower
know of any valid basis for any such claim. The use of such Intellectual
Property by the Borrower and its Subsidiaries does not infringe on the rights of
any Person, except for such claims and infringements that, in the aggregate, are
not reasonably expected to have a Material Adverse Effect.
5.10 NO BURDENSOME RESTRICTIONS. No Requirement of Law or Contractual
Obligation of the Borrower or any of its Subsidiaries has had or is reasonably
expected to have a Material Adverse Effect.
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5.11 TAXES.
(a) Each of the Borrower and its Subsidiaries has timely filed all tax
returns that are required to be filed by them and have timely paid all taxes,
except for any such taxes as are being appropriately contested in good faith by
appropriate proceedings diligently conducted and with respect to which adequate
reserves have been provided.
(b) There are no Liens for Taxes, except for statutory Liens for Taxes not
yet due and payable and except as permitted by Section 7.02(a); provided that,
with respect to previously purchased Owned Property, to the knowledge of the
Borrower, there are no Liens for Taxes, except for statutory Liens for Taxes not
yet due and payable and except as permitted by Section 7.02(a).
5.12 FEDERAL REGULATIONS. No part of the proceeds of any Loans will be used
for "purchasing" or "carrying" any "margin stock" within the respective meanings
of each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect, or for
any purpose which violates, or which would be inconsistent with, the provisions
of the regulations of such Board of Governors
5.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan,
and each Plan (other than a Multiemployer Plan or a multiemployer welfare plan
maintained pursuant to a collective bargaining agreement) has complied in all
material respects with the applicable provisions of ERISA and the Code. No
termination of a Single Employer Plan has occurred, and no Lien in favor of the
PBGC or a Plan has arisen, during such five-year period. The present value of
all accrued benefits under each Single Employer Plan (based on those assumptions
used to fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued benefits. Neither the
Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan, and, to the knowledge of the Borrower,
the Borrower would not become subject to any material liability under ERISA if
Global Signal, the Borrower or any Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. To the
knowledge of the Borrower, no such Multiemployer Plan is in Reorganization or
Insolvent. Except to the extent that any such excess could not have a Material
Adverse Effect, the present value (determined using actuarial and other
assumptions which are reasonable in respect of the benefits provided and the
employees participating) of the liability of the Borrower and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) other than such liability disclosed in the financial
statements of Global Signal or the Borrower does not, in the aggregate, exceed
the assets under all such Plans allocable to such benefits.
5.14 INVESTMENT COMPANY ACT; OTHER REGULATIONS. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940
(as
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amended, the "Investment Company Act"), is not "controlled" by an "investment
company" within the meaning of the Investment Company Act that is not registered
thereunder, and is not required to register under the Investment Company Act.
The Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
5.15 SUBSIDIARIES. Schedule 5.15 sets forth the name of each direct or
indirect Subsidiary of the Borrower, its form of organization, its jurisdiction
of organization, the total number of issued and outstanding shares or other
interests of Capital Stock thereof, the classes and number of issued and
outstanding shares or other interests of Capital Stock of each such class, the
name of each holder of Capital Stock thereof and the number of shares or other
interests of such Capital Stock held by each such holder and the percentage of
all outstanding shares or other interests of such class of Capital Stock held by
such holders.
5.16 SECURITY DOCUMENTS. The provisions of each Security Document are
effective to create in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders a legal, valid and enforceable security
interest in all right, title and interest of the Loan Party thereto in the
"Collateral" described therein.
(a) When proper Uniform Commercial Code financing statements or amendments
to Uniform Commercial Code financing statements previously filed in connection
with this Agreement have been filed in the offices in the jurisdictions listed
in Schedule 5.16, the security interest created by the Security Agreement shall
constitute a fully perfected first priority Lien on, and security interest in,
all right, title and interest of the Borrower in the "Collateral" described
therein, which can be perfected by such filing.
(b) (i) When certificates representing the Pledged Stock (as defined in the
Pledge Agreement) are delivered to the Administrative Agent, together with stock
powers endorsed in blank by a duly authorized officer of the pledgors thereof,
the security interest created by the Pledge Agreement shall constitute a fully
perfected first priority Lien on, and security interest in, all right, title and
interest of the pledgors parties thereto in the "Collateral" described therein.
(ii) The Borrower does not own any property, or have any interest in
any property, that is not subject to a fully perfected first priority Lien
on, or security interest in, such property in favor of the Administrative
Agent (for the benefit of the Administrative Agent and the Lenders),
subject only to Liens permitted under Section 7.02 other than its ownership
interests in the Excluded Subsidiaries, and, prior to the Permitted
Securitization, Pinnacle Towers and its Subsidiaries.
5.17 TRUE AND COMPLETE DISCLOSURE. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf of the
Loan Parties to the Administrative Agent or the Lenders in connection with the
negotiation, preparation or delivery of this Agreement and the other Loan
Documents, or included herein or delivered pursuant hereto, when taken as a
whole, do not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements herein or therein, in light of
the circumstances under which they were made, not misleading. All written
information furnished after the date hereof by or on behalf of the Loan Parties
to the Administrative Agent or the
55
Lenders in connection with this Agreement and the other Loan Documents and the
transactions contemplated hereby and thereby will be true, complete and accurate
in every material respect, or (in the case of projections) based on reasonable
estimates, on the date as of which such information is stated or certified, it
being understood that there is no assurance that any projections will be
obtained. There is no fact known to a Responsible Officer of the Borrower, after
due inquiry, that could reasonably be expected to have a Material Adverse Effect
that has not been disclosed herein, in the other Loan Documents or in a report,
financial statement, exhibit, schedule, disclosure letter or other writing
furnished to the Administrative Agent or the Lenders for use in connection with
the transactions contemplated hereby or thereby.
5.18 LABOR RELATIONS. Neither the Borrower nor any of its Subsidiaries is
engaged in any unfair labor practice which is reasonably expected to have a
Material Adverse Effect. There is (a) no unfair labor practice complaint pending
or, to the best knowledge of the Borrower, threatened against the Borrower or
any of its Subsidiaries before the National Labor Relations Board which is
reasonably expected to have a Material Adverse Effect and no grievance or
arbitration proceeding arising out of or under a collective bargaining agreement
is so pending or threatened; (b) no strike, labor dispute, slowdown or stoppage
pending or, to the best knowledge of the Borrower, threatened against the
Borrower or any of its Subsidiaries; and (c) no union representation question
existing with respect to the employees of the Borrower or any of its
Subsidiaries and no union organizing activities are taking place with respect to
any thereof.
5.19 INSURANCE. The Borrower and each of its Subsidiaries have, with
respect to their respective properties and businesses, insurance covering the
risks, in the amounts, with the deductible or other retention amounts, and with
the carriers, listed on Schedule 5.19. No Person, including the Borrower, has
done, by act or omission, anything which would impair the coverage of such
policies.
5.20 PURPOSE OF LOANS. (a) The proceeds of the Revolving Loans shall be
used by the Borrower for general corporate purposes, (b) the proceeds of the
Term A Loans shall be used in connection with posting the deposit under the Xxxx
Xxxxx Transaction Agreement and to pay transaction costs and any fees or other
charges arising in connection therewith and (c) the proceeds of the Term B Loans
shall be used to pay pre-closing transaction costs and any fees or other charges
arising in connection with the Xxxx Xxxxx Transaction and the incurrence of any
Xxxx Xxxxx Indebtedness, including the reimbursement of costs and expenses paid
to date by Global Signal, in each case, not in contravention of any Law or any
Loan Document.
5.21 ENVIRONMENTAL MATTERS. The Borrower and its Subsidiaries conduct in
the ordinary course of business a review of the claims alleging potential
liability or responsibility for violation of any Environmental Law on their
respective businesses, operations and properties and the Environmental Laws
related to such respective businesses, operations and properties, and as a
result thereof the Borrower has reasonably concluded that, except as
specifically disclosed in Schedule 5.21, such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
5.22 FOREIGN PERSON. The Borrower is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Code.
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5.23 NO SYNTHETIC LEASES. Neither the Borrower nor any of its Subsidiaries
is a party to any Synthetic Lease.
5.24 LIMITED PARTNER. The Borrower is a limited partnership organized under
the laws of Delaware and is disregarded as an entity separate from its owner for
U.S. federal income tax purposes.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in Sections 6.02 and 6.03) cause each Subsidiary
(other than the Excluded Subsidiaries, except as required herein) to:
6.01 [INTENTIONALLY OMITTED.]
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative Agent
and each Lender, in form and detail satisfactory to the Administrative Agent and
the Required Lenders, promptly, such financial and other information as any
Lender may from time to time reasonably request in addition to the financial and
other information delivered to the Administrative Agent by Global Signal
pursuant to Section 12(a) of the Parent Guarantee.
The Borrower hereby acknowledges that (a) the Administrative Agent will
make available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, "Borrower
Materials") by posting the Borrower Materials on IntraLinks or another similar
electronic system (the "Platform") and (b) certain of the Lenders may be
"public-side" Lenders (i.e., Lenders that do not wish to receive material
non-public information with respect to the Borrower or its securities) (each, a
"Public Lender"). The Borrower hereby agrees that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the word
"PUBLIC" shall appear prominently on the first page thereof; (x) by marking
Borrower Materials "PUBLIC," the Borrower shall be deemed to have authorized the
Administrative Agent, the L/C Issuer and the Lenders to treat such Borrower
Materials as either publicly available information or not material information
(although it may be sensitive and proprietary) with respect to the Borrower or
its securities for purposes of United States Federal and state securities laws;
(y) all Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z) the
Administrative Agent shall be entitled to treat any Borrower Materials that are
not marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor."
6.03 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good
57
faith by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Borrower or its
Subsidiaries, as the case may be.
6.04 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Continue to engage
in business of the same general type as now conducted by it and preserve, renew
and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise permitted
pursuant to Section 7.04; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith is
not, in the aggregate, reasonably expected to have a Material Adverse Effect.
6.05 MAINTENANCE OF PROPERTY. (a) Maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in
good working order and condition, ordinary wear and tear excepted; (b) make all
necessary repairs thereto and renewals and replacements thereof except where the
failure to do so could not reasonably be expected to have a Material Adverse
Effect and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.
6.06 MAINTENANCE OF INSURANCE. Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons and providing for not less than 30 days'
prior notice to the Administrative Agent of termination, lapse or cancellation
of such insurance.
6.07 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of the Administrative Agent or Lender to visit and inspect any
of its properties and examine and make abstracts from any of its books and
records during business hours, upon advance notice and as often as may
reasonably be desired, at the Administrative Agent's or Lender's expense (unless
a Default shall have occurred and be continuing, in which case, at the
Borrower's expense) and to discuss the business, operations, properties and
financial and other condition of the Borrower and its Subsidiaries with officers
and employees of the Borrower and its Subsidiaries and with its independent
certified public accountants.
6.08 NOTICES. Promptly, upon any officer thereof obtaining knowledge of any
of the following, notify the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual Obligation of
the Borrower or any of its Subsidiaries (including the Excluded Subsidiaries) or
(ii) litigation, investigation or proceeding which may exist at any time between
the Borrower or any of its Subsidiaries (including the Excluded Subsidiaries)
and any Governmental Authority, which in
58
either case, if not cured or if adversely determined, as the case may be, is
reasonably expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries (including the Excluded Subsidiaries) in which the amount involved
is $1,000,000 or more and not covered by insurance or in which injunctive or
similar relief is sought that, if enforced, would be of similar impact;
(d) the acquisition by the Borrower of any property or interest in property
(including, without limitation, real property) with a value greater than
$100,000 that is not subject to a perfected Lien in favor of the Administrative
Agent pursuant to the Security Documents;
(e) the occurrence of any transaction or occurrence referred to in Sections
2.05(b) triggering a mandatory prepayment;
(f) the following events, as soon as possible and in any event within
thirty (30) days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of, any Plan;
and
(g) any development or event which has had or is reasonably expected to
have a Material Adverse Effect.
Each notice pursuant to this Section 6.08 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to Section
6.08(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
6.09 ENVIRONMENTAL LAWS. Comply with, and shall use its commercially
reasonable efforts to ensure compliance by all tenants and subtenants, if any,
with, all applicable Environmental Laws and obtain and comply in all material
respects with and maintain, and use commercially reasonable efforts to ensure
that all tenants and subtenants obtain and comply in all material respects with
and maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws except, in each case described
above, to the extent that failure to do so could not be reasonably expected to
have a Material Adverse Effect.
6.10 COMPLIANCE WITH LAWS. Comply in all material respects with the
Requirements of Law and all orders, writs, injunctions and decrees applicable to
it or to its business or property, except in such instances in which (a) such
Requirement of Law or order, writ, injunction or decree is being contested in
good faith by appropriate proceedings diligently conducted; or (b) the failure
to comply therewith could not reasonably be expected to have a Material Adverse
Effect.
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6.11 ADDITIONAL GUARANTORS; GUARANTORS.
(a) In the event that the Borrower acquires any property or interest in
property (including, without limitation, real property), other than the
ownership interests in the Excluded Subsidiaries, Pinnacle Towers or any of its
Subsidiaries if prior to the consummation of the Permitted Securitization, that
is not subject to a perfected Lien in favor of the Administrative Agent (for the
benefit of the Administrative Agent and the Lenders) pursuant to the Security
Documents, the Borrower shall take such action as the Administrative Agent shall
reasonably request in order to create and/or perfect a Lien in favor of the
Administrative Agent for the benefit of the Administrative Agent and the Lenders
on such property.
(b) In the event that the Borrower or any Subsidiary (other than an
Excluded Subsidiary, Pinnacle Towers or any of its Subsidiaries, or any foreign
Subsidiary) is permitted to acquire or form any additional Subsidiary, such
newly formed Subsidiary (a "New Subsidiary") shall execute a supplement to the
Subsidiary Guarantee in accordance with Section 22 thereof, and the Borrower
and/or any Subsidiary (other than an Excluded Subsidiary, or, if prior to the
Permitted Securitization, Pinnacle Towers or any of its Subsidiaries) which is a
holder of any Capital Stock of such New Subsidiary shall execute a supplement to
the Pledge Agreement in accordance with Section 5(e) thereof, and shall take
such other action as shall be necessary or advisable (including, without
limitation, the execution of Uniform Commercial Code financing statements) in
order to perfect the Liens granted by the Borrower or such Subsidiary, as the
case may be, in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders and to effect and perfect the pledge of all
of the Capital Stock of such New Subsidiary in favor of the Administrative Agent
for the benefit of the Administrative Agent and the Lenders. The Administrative
Agent shall be entitled to receive legal opinions of one or more counsel to the
Borrower or such Subsidiary, as the case may be, addressing such matters as the
Administrative Agent or its counsel may reasonably request, including, without
limitation, the enforceability of the guaranty against such New Subsidiary, and
the Pledge Agreement against the Borrower or such Subsidiary, as the case may
be, and the creation, validity and perfection of the Liens so granted by the
Borrower or such Subsidiary, as the case may be, to the Administrative Agent for
the benefit of the Administrative Agent and the Lenders.
6.12 FURTHER ASSURANCES. The Borrower will, and will cause each of its
Subsidiaries (other than Excluded Subsidiaries and Pinnacle Towers and its
Subsidiaries if prior to the consummation of the Permitted Securitization) to,
execute any and all further documents, agreements and instruments, and take all
such further actions (including filing registrations and other documents), which
may be required under any applicable law, or which the Administrative Agent or
the Required Lenders may reasonably request, to cause the Collateral to remain a
first priority security interest in favor of the Administrative Agent for the
benefit of the Lenders, all at the expense of the Loan Parties.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain
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outstanding, the Borrower shall not, nor shall it permit any Subsidiary (other
than the Excluded Subsidiaries, except as expressly limited herein) to, directly
or indirectly:
7.01 LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness of the Borrower under this Agreement;
(b) Indebtedness of Pinnacle Towers and its Subsidiaries permitted under
the Pinnacle Towers Credit Agreement prior to the Permitted Securitization;
(c) Indebtedness, other than as permitted pursuant to clauses (b) and (d)
of this Section 7.01, of the Excluded Subsidiaries outstanding on the date
hereof, and any refinancings, refundings, renewals or extensions thereof;
provided that the principal amount of such Indebtedness outstanding at any time
after giving effect to any such refinancing, refunding, renewal or extension
shall not exceed an amount equal to the outstanding principal amount of such
Indebtedness immediately prior to giving effect to any such refinancing,
refunding, renewal or extension plus an amount equal to a reasonable premium or
other reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing, refunding or renewal;
(d) Indebtedness of the Borrower or any Subsidiary of the Borrower to the
Borrower or any Subsidiary of the Borrower, provided that such Indebtedness of
any directly owned Subsidiary to the Borrower is evidenced by an Intercompany
Note and pledged to the Administrative Agent for the benefit of the Lenders and
subordinated to the Obligations on terms and conditions reasonably satisfactory
to the Required Lenders;
(e) Indebtedness in connection with the Permitted Securitization;
(f) any Indebtedness, the aggregate principal amount of which shall not
exceed $2,500,000 at any time outstanding, assumed pursuant to an Acquisition by
Pinnacle Towers or any of its Subsidiaries prior to the Permitted
Securitization;
(g) any Guarantee Obligation permitted under Section 7.03; and
(h) earnouts payable to the seller party in connection with any
Acquisition;
(i) any Indebtedness of Pinnacle Towers Limited and its Subsidiaries
permitted under the Parent Guarantee; and
(j) any Xxxx Xxxxx Indebtedness.
7.02 LIENS. Create, incur, assume or suffer to exist any Lien upon any of
its property, assets or revenues, whether now owned or hereafter acquired,
except for:
(a) Liens for taxes, assessments, governmental charges, levies or claims
not yet due or which are being contested in good faith by appropriate
proceedings (excluding Liens arising under any Environmental Laws, Liens in
favor of the Internal Revenue Service of the United
61
States, the PBGC or any Plan), provided that adequate reserves with respect
thereto are maintained on the books of the Borrower or its Subsidiaries, as the
case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 60 days or which are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self insurance
arrangements;
(d) easements, rights-of-way, licenses, restrictions, encroachments and
other similar encumbrances incurred in the ordinary course of the business of
the Borrower or such Subsidiary or, with respect to any Tower, existing on the
date of the Acquisition of such Tower, which, in the aggregate, do not
materially (1) interfere with the ordinary conduct of the business of the
Borrower and its Subsidiaries, taken as a whole, or (2) impair the use or
operations of the Tower Properties, taken as a whole;
(e) Liens created by lease agreements, statute or common law to secure the
payments of rental amounts and other sums not yet due thereunder;
(f) Liens on Leased Property created by an owner or lessor thereof;
(g) Licenses, sublicenses, leases or subleases granted by the Borrower or
such Subsidiary in the ordinary course of its businesses and not expressly
prohibited by any provision of this Agreement or any other Loan Document and not
materially interfering with the conduct of the business of the Borrower or any
of such Subsidiary;
(h) Liens created pursuant to the Security Documents, the Pinnacle Towers
Credit Agreement and the Permitted Securitization;
(i) Liens in the ordinary course of business on (i) cash to secure
performance of statutory obligations, surety or appeal bonds, performance bonds,
bids or tenders or (ii) escrow deposits in connection with Acquisitions by
Pinnacle Towers and/or any of its Subsidiaries permitted hereunder which secure
an amount not to exceed at any time $12,000,000 in the aggregate;
(j) Liens on Indebtedness of Pinnacle Towers Limited and its Subsidiaries
permitted pursuant to Section 7.01(i);
(k) Liens securing the payment of judgments which do not result in an Event
of Default and which are being appealed and contested in good faith, have been
adequately bonded pending such appeal and with respect to which enforcement has
been stayed;
(l) Liens securing the payment of any Xxxx Xxxxx Indebtedness; and
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(m) Liens granted by the Borrower pursuant to the Global Acquisitions
Credit Agreement.
7.03 LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume or suffer
to exist any Guarantee Obligation, other than (i) the Guarantees, (ii) Guarantee
Obligations to third parties in respect of liabilities (other than Indebtedness)
of Subsidiaries of the Borrower incurred in the ordinary course of business,
(iii) Guarantee Obligations of the Borrower in connection with the Pinnacle
Towers Credit Agreement and the Global Acquisitions Credit Agreement, (iv)
Guarantee Obligations of Pinnacle Towers and any of its Subsidiaries required by
or permitted under the Pinnacle Towers Credit Agreement (v) indemnities made by
Pinnacle Towers in favor of the title company in connection with the issuance of
a title policy on a Mortgaged Property (as defined in the Pinnacle Towers Credit
Agreement) to the extent that the liability thereunder does not exceed at any
time (A) 5% of the Tower Value (as defined in the Pinnacle Towers Credit
Agreement) on such Mortgaged Property or (B) when aggregated together with the
liability under all other such indemnities provided by Pinnacle Towers or any of
its Subsidiaries, 2% of the aggregate Tower Value of Towers included in the
Borrowing Base (as defined in the Pinnacle Towers Credit Agreement) at such
time, and (vi) Guarantee Obligations in respect of any Xxxx Xxxxx Indebtedness.
7.04 LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any such Subsidiary may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the continuing or surviving
entity) or with or into any one or more wholly owned Subsidiaries (other than
Excluded Subsidiaries, or, if prior to the Permitted Securitization, Pinnacle
Towers and its Subsidiaries) of the Borrower (provided that such wholly owned
Subsidiary or Subsidiaries shall be the continuing or surviving entity);
(b) any such Subsidiary may sell, lease, transfer or otherwise dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any other wholly owned Subsidiary (other than Excluded Subsidiaries,
or, if prior to the Permitted Securitization, Pinnacle Towers and its
Subsidiaries, except as permitted by Section 7.05(c)) of the Borrower;
(c) the merger of the Borrower or any such Subsidiary of the Borrower with
or into Global Signal or a Subsidiary of Global Signal so long as each Lender
determines (in its sole discretion) that such merger is not adverse to its
interests and provides written notice of the same to the Borrower;
(d) the merger of any such Subsidiary with or into another Person pursuant
to an Acquisition, provided that concurrently therewith the requirements of
Section 6.11(b) with respect thereto are satisfied; and
(e) the dissolution of Concorde Swindon Limited.
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7.05 LIMITATION ON SALE OF ASSETS. Convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including, without
limitation, receivables and leasehold interests), whether now owned or hereafter
acquired, or, in the case of any such Subsidiary, issue or sell any shares of
such Subsidiary's Capital Stock to any Person other than the Borrower or any
wholly owned Subsidiary, except:
(a) the sale or other disposition of obsolete or worn out property in the
ordinary course of business, provided that the Net Cash Proceeds of each such
transaction are applied in accordance with and to the extent required by Section
2.05(b);
(b) as permitted by Section 7.04(b);
(c) the sale or transfer of Towers to any Excluded Subsidiary by any
Subsidiary of the Borrower; provided that the aggregate allocated purchase price
of such Towers so sold or transferred from the Closing Date shall not exceed
$1,000,000; and
(d) the sale or other disposition of any property in the ordinary course of
business.
7.06 LIMITATION ON DISTRIBUTIONS. (a) Make any distribution on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any shares of any class of Capital Stock of the Borrower or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
such Subsidiary, except, (i) distributions in cash or other property to the
extent required to satisfy the REIT Distribution Requirement, and, (ii) so long
as no Event of Default then exists or would result therefrom, (1) equity
distributions as consideration for the transactions contemplated by Section
7.04(c), (2) in addition to and without duplication of dividends paid under
clause (i) of this Section, ordinary quarterly dividends to the holders of the
Capital Stock of the Borrower in an amount reasonably comparable to ordinary
quarterly dividends customarily declared (including increases in such dividends
consistent, in terms of the percentage of such increase, with past practices) by
the Board of Directors of Global Signal, and (3) distributions of cash to the
extent necessary to pay the ordinary operating expenses of Global Signal,
provided that the aggregate amount of such distributions made pursuant to this
subclause (3) from the Original Closing Date shall not exceed $2,000,000; and
(b) Enter into any derivative or other transaction with any financial
institution, commodities or stock exchange or clearinghouse (a "Derivatives
Counterparty") obligating the Borrower or any Subsidiary to make payments to
such Derivatives Counterparty as a result of any change in market value of any
such Capital Stock;
(all such declarations, payments, setting apart, purchases, redemptions,
defeasances, retirements, acquisitions and distributions, and all such
transactions with any Derivatives Counterparties, all as described in
subsections (a) and (b) above, being herein called "Restricted Payments").
7.07 [INTENTIONALLY OMITTED.]
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7.08 LIMITATION ON INVESTMENTS, LOANS AND ADVANCES. Make any advance, loan,
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of, or make any other investment in, any Person, except:
(a) prior to the Permitted Securitization, investments permitted pursuant
to the Pinnacle Towers Credit Agreement;
(b) extensions of trade credit in the ordinary course of business;
(c) investments in Cash Equivalents;
(d) investments arising from transactions by the Borrower or any Subsidiary
with customers or suppliers in the ordinary course of business, including
endorsements of negotiable instruments, debt obligations and other investments
received in connection with the bankruptcy or reorganization of customers and
suppliers and in settlement of delinquent obligations of, and other disputes
with, customers and suppliers;
(e) investments by the Borrower in any Subsidiary and investments by any
such Subsidiary in the Borrower and in other Subsidiaries of the Borrower,
provided that each such investment by the Borrower that is a loan to a directly
owned Subsidiary is evidenced by an Intercompany Note;
(f) investments in a Person for the purpose of consummating an Acquisition
so long as such Person becomes a Subsidiary of the Borrower upon the
consummation of such Acquisition and the requirements of Section 6.11 hereto are
satisfied; and
(g) any purchase of assets by the Borrower constituting a business unit of
any Person, provided that, the requirements of Section 6.11 hereto are
satisfied.
7.09 LIMITATION ON PREPAYMENTS AND MODIFICATIONS OF DEBT INSTRUMENTS. (a)
Make any optional payment or prepayment on or redemption or purchase of any
Indebtedness (other than the Loans and the Pinnacle Towers Credit Agreement),
(b) amend, modify or change, or consent or agree to any amendment, modification
or change to any of the terms relating to the payment or prepayment of, or
principal of or interest on, any such Indebtedness (other than any such
amendment, modification or change which would extend the maturity or reduce the
amount of any payment of principal thereof or which would reduce the rate or
extend the date for payment of interest thereon, or as permitted under clause
(c) of this Section 7.09) or (c) refinance, amend, restate or otherwise make any
material modification to any such Indebtedness.
7.10 LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate, unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business, and (c) on fair
and reasonable terms no less favorable to the Borrower or such Subsidiary, as
the case may be, than it would obtain in a comparable arm's-length transaction
with a Person which is not an Affiliate; provided that the restrictions set
forth in this Section 7.10 shall not apply to (i) any
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Management Agreement, so long as such Management Agreement is subordinated to
the Obligations on terms reasonably satisfactory to the Administrative Agent and
shall be otherwise in form and substance reasonably satisfactory to the Required
Lenders, (ii) any transaction with Pinnacle Towers or any of its Subsidiaries
pursuant to the Permitted Securitization, (iii) the payment of any Restricted
Payment permitted under Section 7.06; (iv) the incurrence of Indebtedness
permitted under Section 7.01(d); (v) any investments made pursuant to Section
7.08(e) and (vi) the sale or transfers of Towers pursuant to Sections 7.04(b)
and 7.05(c).
7.11 LIMITATION ON SYNTHETIC LEASES AND SALE/LEASEBACK TRANSACTIONS. Enter
into any Synthetic Lease or any other arrangement with any Person providing for
the leasing by the Borrower or any Subsidiary (other than any Excluded
Subsidiary) of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary.
7.12 LIMITATION ON CHANGES IN FISCAL YEAR. Permit the fiscal year of the
Borrower to end on a day other than December 31.
7.13 LIMITATION ON NEGATIVE PLEDGES. Enter into with any Person any
agreement, other than the Loan Documents, which prohibits or limits the ability
of the Borrower or any of its Subsidiaries (other than Excluded Subsidiaries,
or, if prior to the Permitted Securitization, Pinnacle Towers and its
Subsidiaries) to create, incur, assume or suffer to exist any Lien on any of its
property, assets or revenues, whether now owned or hereafter acquired, except as
required under the Permitted Securitization.
7.14 LIMITATION ON LINES OF BUSINESS. Enter into any business, either
directly or through any Subsidiary (other than any Excluded Subsidiary), except
for those businesses in which the Borrower and its Subsidiaries (other than any
Excluded Subsidiary) are engaged (or proposed to be engaged) on the date of this
Agreement or which are directly related thereto.
7.15 GOVERNING DOCUMENTS. (a) With respect to the Borrower, amend its
Governing Documents in a manner which would have a Material Adverse Effect and
(b) with respect to any Subsidiary (other than any Excluded Subsidiary) of the
Borrower, amend its Governing Documents in a manner that would adversely affect
the interests of any Lender under the Loan Documents without the prior written
consent of the Required Lenders, which shall not be unreasonably withheld or
delayed.
7.16 LIMITATION ON SUBSIDIARY FORMATION. Form any Subsidiaries (other than
an Excluded Subsidiary) unless, immediately upon the formation of such
Subsidiary, all requirements of Section 6.11 shall have been satisfied.
7.17 XXXX XXXXX TRANSACTION AGREEMENT. So long as the Term Loans are
outstanding, amend, supplement or otherwise modify, or provide waivers of, any
of the terms or provisions of the Xxxx Xxxxx Transaction Agreement in any manner
that could reasonably be expected to be materially adverse to the Lenders,
without the express prior written consent of each Lender.
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ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower or any other Loan Party fails to pay (i) when
and as required to be paid herein, any amount of principal of any Loan or any
L/C Obligation, or (ii) within three days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or
(iii) within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or
(b) Specific Covenants. The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.11, Section 6.13 or Article
VII, Global Signal fails to perform or observe any term, covenant or agreement
contained in Section 12(f) and Section 22 of the Parent Guarantee, Section 6 of
the Pledge Agreement or Sections 5(a), (b), (h), (i), (j), (k) and (p) of the
Security Agreement; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the earlier of (i) an officer of such Loan Party
becoming aware of such default or (ii) the Administrative Agent or any Lender
giving notice of such default to such Loan Party; or
(d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or
(e) Cross-Default. Global Signal, the Borrower or any of their respective
Subsidiaries shall (i) default in any payment of principal of or interest of any
Indebtedness (other than the Loans) or in the payment of any Guarantee
Obligation, in excess of the Threshold Amount and beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created; or (ii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Guarantee Obligation (or a trustee or administrative agent
on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become payable;
(f) (i) Global Signal, the Borrower or any of their respective Subsidiaries
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
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bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any substantial part
of its assets, or Global Signal, the Borrower or any of their respective
Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against Global Signal, the Borrower or any of
their respective Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unstayed for a period of 30 days; or (iii) there shall be
commenced against Global Signal, the Borrower or any of their respective
Subsidiaries any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) Global Signal, the
Borrower or any of their respective Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii) or (iii) above; or (v) Global
Signal, the Borrower or any of their respective Subsidiaries shall generally
not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due;
(g) (i) Any Person shall engage in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii)
any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of Global Signal, the Borrower
or any Commonly Controlled Entity, (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, is reasonably
expected to have a Material Adverse Effect;
(h) One or more judgments or decrees shall be entered against Global Signal
or any of its Subsidiaries involving in the aggregate a liability (to the extent
not paid or covered by insurance) of $5,000,000 or more, and all such judgments
or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof;
(i) (i) Except as consented to by the Required Lenders, any of the Security
Documents shall cease, for any reason, to be in full force and effect or the
Borrower or any other Loan Party which is a party to any of the Security
Documents shall so assert or (ii) the Lien created by any of the Security
Documents shall cease to be enforceable and of the same effect and priority
purported to be created thereby;
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(j) Any Change of Control shall occur; provided, however, that a Change of
Control resulting from a breach under clause (a) of the definition thereof shall
be deemed an Event of Default hereunder only in the event that any of the
following shall occur:
(A) the ownership percentages as set forth in subclauses (i) and
(ii) thereof decrease from 51% to less than 40% solely as the result
of any issuance of Capital Stock of Global Signal;
(B) the ownership percentages as set forth in subclauses (i) and
(ii) thereof fall below 51% as a result of the sale by the Equity
Investors and/or any Person controlled by Fortress Investment Group
LLC or Xxxxxxxxx Capital Partners, L.P. or its Affiliates of its
Capital Stock of Global Signal to satisfy a margin call under the Frit
Pinn Credit Agreement and the same remains unremedied for a period of
thirty (30) days or all of the Obligations have not been paid in full
within such thirty (30) day period; or
(C) the ownership percentages as set forth in subclauses (i) and
(ii) thereof fall below 51% as a result of the sale by any Person
controlled by Fortress Investments Group LLC or Xxxxxxxxx Capital
Partners, L.P. or its Affiliates of its Capital Stock of Global Signal
and the same remains unremedied for a period of thirty (30) days or
all of the Obligations have not been paid in full within such thirty
(30) day period; provided, however, that an Event of Default shall
occur immediately if such ownership percentage ceases to be at least
40% immediately following any such sale; and
(k) Any Global Signal Default shall occur and such default shall continue
unremedied for a period of 30 days;
(l) The failure of Global Signal to at any time continue to be (i)
qualified as a real estate investment trust as defined in Section 856 of the
Code, and (ii) entitled to a dividend paid deduction under Section 857 of the
Code with respect to dividends paid by it with respect to each taxable year for
which it claims a deduction on its Form 1120 - REIT filed with the United States
Internal Revenue Service for such year, or the entering into by Global Signal of
any material "prohibited transactions" as defined in Sections 857(b) and 856(c)
of the Code; or
(m) Either of the Parent Guarantee or any Subsidiary Guarantee for any
reason, other than the satisfaction in full of all Obligations, shall cease to
be in full force and effect (other than in accordance with its terms or pursuant
to the Permitted Securitization), or shall be declared to be null and void or
any guarantor shall repudiate its obligations thereunder.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any obligation
of the L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;
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(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations (in an
amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and remedies
available to it and the Lenders under the Loan Documents;
provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall automatically become effective, in each case without further act
of the Administrative Agent or any Lender.
8.03 APPLICATION OF FUNDS. After the exercise of remedies provided for in
Section 8.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 8.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders and the L/C Issuer (including reasonable fees, charges and disbursements
of counsel to the respective Lenders and the L/C Issuer and amounts payable
under Article III), ratably among them in proportion to the amounts described in
this clause Second payable to them;
Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans, L/C Borrowings and other Obligations, ratably
among the Lenders and the L/C Issuer in proportion to the respective amounts
described in this clause Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;
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Fifth, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Section 2.03(b), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORITY. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the
Administrative Agent and as security trustee (with respect to the Collateral
subject to the Deed of Charge) hereunder and under the other Loan Documents and
authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably
incidental thereto. Except as set forth in Section 9.06, the provisions of this
Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and neither the Borrower nor any other Loan Party shall have
rights as a third party beneficiary of any of such provisions.
9.02 RIGHTS AS A LENDER. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person
serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the
financial advisor or in any other advisory capacity for and generally engage in
any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if such Person were not the Administrative Agent hereunder and
without any duty to account therefor to the Lenders.
9.03 EXCULPATORY PROVISIONS. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents. Without limiting the generality of the foregoing, the
Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative Agent
is required to exercise as directed in writing by the Required Lenders (or such
other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative
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Agent shall not be required to take any action that, in its opinion or the
opinion of its counsel, may expose the Administrative Agent to liability or that
is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates that
is communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not
taken by it (i) with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by the Borrower, a
Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the
Administrative Agent.
9.04 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any
notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting
or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper Person, and shall not incur any liability
for relying thereon. In determining compliance with any condition hereunder to
the making of a Loan, or the issuance of a Letter of Credit, that by its terms
must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the
Administrative Agent may presume that such condition is satisfactory to such
Lender or the L/C Issuer unless the Administrative Agent shall have received
notice to the contrary from such Lender or the L/C Issuer prior to the making of
such Loan or the issuance of such Letter of Credit. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
9.05 DELEGATION OF DUTIES. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other
Loan Document by or
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through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers by or through their respective Related
Parties. The exculpatory provisions of this Article shall apply to any such
sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
9.06 RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative Agent may at
any time give notice of its resignation to the Lenders, the L/C Issuer and the
Borrower. Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, with the approval of the Borrower, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, and with the approval of the Borrower, appoint a
successor Administrative Agent meeting the qualifications set forth above; upon
the appointment of such successor Administrative Agent such resignation shall
become effective in accordance with such notice and (1) the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents (except that in the case of any
Collateral held by the Administrative Agent on behalf of the Lenders or the L/C
Issuer under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such Collateral until such time as a successor Administrative
Agent is appointed) and (2) all payments, communications and determinations
provided to be made by, to or through the Administrative Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above
in this Section. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other
Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative
Agent's resignation hereunder and under the other Loan Documents, the provisions
of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Administrative Agent was acting as Administrative Agent.
9.07 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
and the L/C Issuer acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender or any of their Related
Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender and the L/C Issuer also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or
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based upon this Agreement, any other Loan Document or any related agreement or
any document furnished hereunder or thereunder.
9.08 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans, L/C Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders, the L/C
Issuer and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents and counsel and
all other amounts due the Lenders, the L/C Issuer and the Administrative Agent
under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial
proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender or
the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the claim of any Lender
in any such proceeding.
9.09 COLLATERAL AND GUARANTEE MATTERS. The Lenders and the L/C Issuer
irrevocably authorize the Administrative Agent, at its option and in its
discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold, or otherwise disposed of, as
part of or in connection with any sale or other transaction permitted hereunder
or under any other Loan Document, (iii) that is to be released in connection
with the Permitted
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Securitization, or (iv) subject to Section 10.01, if approved, authorized or
ratified in writing by the Required Lenders; and
(b) to release any Guarantor from its obligations under the relevant
Guarantee if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder or any other Loan Document, including due to the Permitted
Securitization.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the relevant Guarantee pursuant to this
Section 9.09.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in Section 4.01(a) without the written
consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document
for any payment or mandatory prepayment of principal, interest, fees or other
amounts due to the Lenders (or any of them) or any scheduled or mandatory
reduction of the Aggregate Commitments hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (iii) of the second proviso to
this Section 10.01) any fees or other amounts payable hereunder or under any
other Loan Document, without the written consent of each Lender directly
affected thereby; provided, however, that only the consent of the Required
Lenders shall be necessary (i) to amend the definition of "Default Rate" or to
waive any obligation of the Borrower to the Default Rate paid with respect to
any Obligation;
(e) change Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change the definition of "Applicable Percentage", "Applicable Revolving
Percentage", "Applicable Term A Loan Percentage", "Applicable Term B Loan
Percentage",
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"Required Term A Loan Lenders", "Required Term B Loan Lenders", or "Required
Revolving Loan Lenders" without the consent of each Lender directly affected
thereby;
(g) change any provision of this Section 10.01 or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender; or
(h) release any one or more Guarantors which accounts for, individually or
in the aggregate, at least 25% of the net assets or net cash flow of Global
Signal and its Subsidiaries, determined on a consolidated basis in accordance
with GAAP, from its Guarantee without the written consent of each Lender, except
as contemplated in Section 9.09(b);
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Issuer
Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; (iii) neither the Fee Letter nor the Lender Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto. Notwithstanding anything to the contrary herein, no
Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder, except as specified in clauses (b) and (d) of this
Section 10.01.
10.02 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopier or
electronic mail as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if to the Borrower, the Administrative Agent or the L/C Issuer, to
the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02; and
(ii) if to any other Lender, to the address, telecopier number,
electronic mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices sent
by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient). Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such
subsection (b).
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(b) Electronic Communications. Notices and other communications to the
Lenders and the L/C Issuer hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Lender or the L/C Issuer pursuant to Article
II if such Lender or the L/C Issuer, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices
or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
(c) Change of Address, Etc. Each of the Borrower, the Administrative Agent
and the L/C Issuer may change its address, telecopier or telephone number for
notices and other communications hereunder by notice to the other parties
hereto. Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent and the L/C Issuer.
(d) Reliance by Administrative Agent, L/C Issuer and Lenders. The
Administrative Agent, the L/C Issuer and the Lenders shall be entitled to rely
and act upon any notices (including telephonic Loan Notices) purportedly given
by or on behalf of the Borrower even if (i) such notices were not made in a
manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood
by the recipient, varied from any confirmation thereof. The Borrower shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of the Borrower. All telephonic notices to and other telephonic
communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender, the L/C
Issuer or the Administrative Agent to exercise, and no delay by any such Person
in exercising, any right, remedy, power or privilege hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
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10.04 EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its respective
Affiliates (including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the reasonable fees, charges and disbursements of any
counsel for the Administrative Agent, any Lender or the L/C Issuer), in
connection with the enforcement or protection of its rights (A) in connection
with this Agreement and the other Loan Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of Credit
issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit. In addition, the Borrower agrees to pay as and when billed by any Lender
party to the Credit Agreement on the Closing Date and who is not the
Administrative Agent all of its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of the
Loan Documents, including without limitation all reasonable fees, distributions
and expenses of counsel, in an amount not to exceed $25,000 in the aggregate.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses (including
the reasonable fees, charges and disbursements of any counsel for any
Indemnitee), reasonably incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Loan Party arising
out of, in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, including the Fee Letter, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any Loan
or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory, whether brought by a third party or by the Borrower or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto,
in all cases, whether or not caused by or arising, in whole or in part, out of
the comparative, contributory or sole negligence of the Indemnitee; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
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determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower or any other
Loan Party against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Loan Document, if the Borrower or such
Loan Party has obtained a final and nonappealable judgment in its favor on such
claim as determined by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or (b)
of this Section 10.04 to be paid by it to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in
its capacity as such, or against any Related Party of any of the foregoing
acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted
by applicable law, the Borrower shall not assert, and hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other
Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof. No Indemnitee referred to in subsection (b) above
shall be liable for any damages arising from the use by unintended recipients of
any information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby; so long as such information or other materials were distributed by such
Indemnitee in accordance with the terms hereof.
(e) Payments. All amounts due under this Section 10.04 shall be payable not
later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section 10.04 shall survive the
resignation of the Administrative Agent and the L/C Issuer, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
10.05 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf of
the Borrower is made to the Administrative Agent, the L/C Issuer or any Lender,
or the Administrative Agent, the L/C Issuer or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement
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entered into by the Administrative Agent, the L/C Issuer or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from
the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate from time to time in effect. The obligations of
the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall
survive the payment in full of the Obligations and the termination of this
Agreement.
10.06 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that neither the
Borrower nor any other Loan Party may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the
Administrative Agent and each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount
of the assigning Lender's Commitment and the Loans at the time owing to it
or in the case of an assignment to a Lender or an Affiliate of a Lender or
an Approved Fund with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $2,500,000 unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is continuing,
the Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed);
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(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned;
(iii) any assignment of a Commitment must be approved by the
Administrative Agent and the L/C Issuer unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $2,500, and the Eligible Assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, and 10.04 with respect to
facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as
an agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by each of the Borrower and the L/C Issuer at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or substantive change to
the Loan Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative Agent a
copy of the Register.
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Administrative Agent, sell participations to any
Person (other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries or any direct
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competitor of the Borrower listed on Schedule 10.06) (each, a "Participant") in
all or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans (including such
Lender's participations in L/C Obligations) owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Lenders and the L/C Issuer shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that in no event shall any Participant
under any such participation have the right to approve any amendment to or
waiver of any provision of any Loan Document, or any consent to any departure by
any Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or the stated date of interest on, the
Loans or any fees payable hereunder, or postpone the date of the final maturity
of the Loans or the Obligations, in each case to the extent subject to such
participation. Subject to subsection (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 3.01 and
3.04 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.13 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 3.01 or 3.04 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, without the Borrower's prior written
consent. A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.01 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 3.01(e) as though it were a
Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto and no such pledgee or assignee shall be a direct competitor
of the Borrower listed on Schedule 10.06.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall be
deemed to include electronic signatures or the keeping of records in electronic
form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce
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Act, the New York State Electronic Signatures and Records Act, or any other
similar state laws based on the Uniform Electronic Transactions Act.
(h) Resignation as L/C Issuer after Assignment. Notwithstanding anything to
the contrary contained herein, if at any time Bank of America assigns all of its
Commitment and Loans to any Person other than Xxxxxx Xxxxxxx pursuant to
subsection (b) above, Bank of America may, upon 30 days' notice to the Borrower
and the Lenders, resign as L/C Issuer. In the event of any such resignation as
L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders
(other than Xxxxxx Xxxxxxx) a successor L/C Issuer hereunder; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer, as the case may be. If Bank of
America resigns as L/C Issuer, it shall retain all the rights and obligations of
the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of
the effective date of its resignation as L/C Issuer and all L/C Obligations with
respect thereto (including the right to require the Lenders to make Base Rate
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)).
10.07 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY. Each Lender and
the L/C Issuer agrees to keep confidential any written or oral information (a)
provided to it by or on behalf of the Borrower or any of its Subsidiaries
pursuant to or in connection with this Agreement or (b) obtained by such Lender
or the L/C Issuer based on a review of the books and records of the Borrower or
any of its Subsidiaries; provided that nothing herein shall prevent any Lender
or the L/C Issuer from disclosing any such information (i) to any Transferee or
Assignee, or to any actual or prospective counterparty (or its advisors) to any
swap, credit derivative or other derivative transaction relating to the Borrower
and its obligations, which has signed a confidentiality agreement containing the
terms of this Section 10.07, (ii) to its employees, directors, agents,
attorneys, accountants and other professional advisors who reasonably need to
know such information in connection with such Lender's or the L/C Issuer's
rights and obligations under the Loan Documents and who have a duty to keep such
information confidential, (iii) upon the request or demand of any examiner or
other Governmental Authority having jurisdiction over such Lender or the L/C
Issuer, (iv) in response to any order of any court or other Governmental
Authority or as may otherwise be required pursuant to any Requirement of Law,
(v) which has been publicly disclosed other than in breach of this Agreement,
(vi) in connection with the exercise of any remedy hereunder or (vii) to the
National Association of Insurance Commissioners, any nationally recognized
statistical rating agency or any other similar organization.
10.08 RIGHT OF SETOFF. If an Event of Default shall have occurred and be
continuing, each Lender, the L/C Issuer and each of their respective Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final, in whatever currency) at any
time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account
of the Borrower or any other Loan Party against any and all of the obligations
of the Borrower or such Loan Party now or hereafter existing under this
Agreement or any other Loan Document to such Lender or the L/C Issuer,
irrespective of whether or not such Lender or the L/C Issuer shall have made any
demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Loan Party may be contingent or unmatured or
are owed to a
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branch or office of such Lender or the L/C Issuer different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each Lender, the L/C Issuer and their respective Affiliates under this Section
are in addition to other rights and remedies (including other rights of setoff)
that such Lender, the L/C Issuer or their respective Affiliates may have. Each
Lender and the L/C Issuer agrees to notify the Borrower and the Administrative
Agent promptly after any such setoff and application, provided that the failure
to give such notice shall not affect the validity of such setoff and
application.
10.09 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If the Administrative Agent or
any Lender shall receive interest in an amount that exceeds the Maximum Rate,
the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether
the interest contracted for, charged, or received by the Administrative Agent or
a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate, and spread in
equal or unequal parts the total amount of interest throughout the contemplated
term of the Obligations hereunder.
10.10 COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the other
Loan Documents constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
10.11 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
10.12 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or
84
impaired thereby and (b) the parties shall endeavor in good faith negotiations
to replace the illegal, invalid or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the illegal, invalid or unenforceable provisions. The invalidity of a provision
in a particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
10.13 REPLACEMENT OF LENDERS. If any Lender requests compensation under
Section 3.04, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, or if any Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 10.06), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment), provided that:
(a) the Borrower shall have paid to the Administrative Agent the assignment
fee specified in Section 10.06(b);
(b) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and L/C Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the other
Loan Documents (including any amounts under Section 3.04) from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts);
(c) in the case of any such assignment resulting from a claim for
compensation under Section 3.04 or payments required to be made pursuant to
Section 3.01, such assignment will result in a reduction in such compensation or
payments thereafter; and
(d) such assignment does not conflict with applicable Laws.
A Lender shall not be required to make any such assignment or delegation
if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
10.14 GOVERNING LAW; JURISDICTION; ETC.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT IN
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RESPECT THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT
A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL
AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS
PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE
OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02 TO THE EXTENT
PERMITTED BY APPLICABLE LAW. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF
ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
10.15 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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10.16 USA PATRIOT ACT NOTICE. Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Act.
10.17 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
GLOBAL SIGNAL OPERATING
PARTNERSHIP, L.P., as Borrower
By: Global Signal GP LLC, its Managing
General Partner
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------------
Title: Executive Vice President
-------------------------------
S-1
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
--------------------------------
Title: Senior Vice President
-------------------------------
S-2
LENDERS
BANK OF AMERICA, N.A., as a Lender,
L/C Issuer
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
--------------------------------
Title: Senior Vice President
-------------------------------
XXXXXX XXXXXXX ASSET FUNDING INC.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
--------------------------------
Title: Vice President
-------------------------------
S-3
