EXHIBIT 10.9
EXECUTION VERSION
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of October 24, 2003, by and among SpectraSite
Communications, Inc., a Delaware corporation (the "Borrower"), SpectraSite, Inc.
(formerly known as SpectraSite Holdings, Inc.), a Delaware corporation
("Holdco"), Canadian Imperial Bank of Commerce, as administrative agent (the
"Administrative Agent") and the other Credit Parties signatory hereto (the
"Credit Parties").
W I T N E S S E T H:
WHEREAS, the Borrower, Holdco, the Administrative Agent and the Credit
Parties are parties to that certain Amended and Restated Credit Agreement dated
as of February 22, 2001, as amended by that certain First Amendment to Amended
and Restated Credit Agreement dated as of October 31, 2001, as amended by that
certain Second Amendment to Amended and Restated Credit Agreement dated as of
August 14, 2002, as amended by that certain Third Amendment to Amended and
Restated Credit Agreement dated as of May 14, 2003 (as further amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, Holdco, CIBC World Markets Corp. and Credit
Suisse First Boston, as joint lead arrangers and bookrunners (the "Lead
Arrangers"), CIBC World Markets Corp., Credit Suisse First Boston, Bank of
Montreal, Chicago Branch and TD Securities (USA) Inc., as arrangers (the
"Arrangers"), Credit Suisse First Boston, as syndication agent (the "Syndication
Agent"), Bank of Montreal, Chicago Branch and TD Securities (USA) Inc., as
co-documentation agents (the "Documentation Agents"), the Administrative Agent
and the other Credit Parties (as defined in the Credit Agreement) party thereto;
and
WHEREAS, the Borrower has requested, and the Administrative Agent and
the Credit Parties have agreed, to amend the Credit Agreement as and to the
extent set forth herein; and
NOW THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree that all capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement, as amended hereby, except as otherwise defined
or limited herein, and further agree, subject to the conditions precedent to
this Amendment hereinafter set forth, as follows:
1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions, is hereby modified
and amended by adding the following definitions in appropriate alphabetical
order:
"'Final Incremental Facility Maturity Date' shall mean the
latest to occur of the Incremental Facility Maturity Dates for the
Incremental Facility Loans."
"'Fourth Amendment Date' shall mean October 24, 2003."
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"'Incremental Facility Commitment Ratio' shall mean, with
respect to any Lender, the ratio, expressed as a percentage, of (i) the
Incremental Facility Commitment of such Lender, divided by (ii) the
aggregate Incremental Facility Commitments of all of the Lenders."
"'Incremental Facility 2003 Commitment' shall mean the several
obligations of certain of the Lenders to advance the sum of up to
$252,203,503.26 to the Borrower on the Fourth Amendment Date in
accordance with their respective Incremental Facility 2003 Commitment
Ratios, all pursuant to the terms hereof. The Incremental Facility 2003
Commitment of each Lender is set forth on Schedule I to the Lender
Addendum to the Fourth Amendment to the Amended and Restated Credit
Agreement delivered by such Lender under the caption "Incremental
Facility 2003 Commitment."
"'Incremental Facility 2003 Commitment Ratio' shall mean, with
respect to any Lender, the ratio, expressed as a percentage, of (i) the
Incremental Facility 2003 Commitment of such Lender, divided by (ii)
the aggregate Incremental Facility 2003 Commitments of all of the
Lenders."
"'Incremental Facility 2003 Lenders' shall mean any Lender
having an Incremental Facility 2003 Commitment or making Incremental
Facility 2003 Loans pursuant thereto.
"'Incremental Facility 2003 Loans' shall mean the amounts
advanced by the Incremental Facility 2003 Lenders to the Borrower under
the Incremental Facility 2003 Commitment, not to exceed the amount of
the Incremental Facility 2003 Commitment."
"'Incremental Facility 2003 Maturity Date' shall mean December
31, 2007."
"'Incremental Facility 2003 Notes' shall mean those certain
term notes issued by the Borrower to each of the Incremental Facility
2003 Lenders issuing an Incremental Facility 2003 Commitment that
requests a promissory note in accordance with each such Incremental
Facility 2003 Lender's Incremental Facility 2003 Commitment Ratio, each
one substantially in the form of Exhibit S-2 attached hereto, and any
extensions, modifications, renewals or replacements of or amendments to
any of the foregoing."
"'Incremental Facility 2003 Request for Advance' shall mean a
certificate designated as an "Incremental Facility 2003 Request for
Advance," executed by an Authorized Signatory of the Borrower
requesting an Advance of the Incremental Facility 2003 Loans hereunder,
which shall be in substantially the form of Exhibit J-2 attached hereto
and shall, among other things, (a) specify the date of the Advance,
which shall be a Business Day, the amount of the Advance, the type of
Advance, and, with respect to a Eurodollar Advance, the Eurodollar
Advance Period selected by the Borrower, (b) state that there shall not
exist, on the date of the requested Advance both before and after
giving effect thereto, any Default or Event of Default, and (c) state
that the proceeds of the Advance shall be used to repay in full the
outstanding obligations with respect to the Tranche B Loans.
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"'Notice of Incremental Facility 2003 Commitment' shall mean a
notice in substantially the form of Exhibit Y attached hereto."
"'Rejectable Loans' shall have the meaning ascribed thereto in
Section 2.5(b)(ii)(C)."
(b) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the existing definition of "Incremental
Facility Commitments" in its entirety and by substituting the following in lieu
thereof:
"'Incremental Facility Commitments' shall mean, collectively,
the aggregate commitments of the Incremental Facility Lenders to make
Advances of the Incremental Facility Loans to the Borrower in
accordance with Section 2.16 hereof, including, without limitation, the
Incremental Facility 2003 Commitments."
(c) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the existing definition of "Incremental
Facility Lenders" in its entirety and by substituting the following in lieu
thereof:
"'Incremental Facility Lenders' shall mean any lenders having
an Incremental Facility Commitment or making Incremental Facility Loans
pursuant thereto, including, without limitation the Incremental
Facility 2003 Lenders."
(d) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the existing definition of "Incremental
Facility Loans" in its entirety and by substituting the following in lieu
thereof:
"'Incremental Facility Loans' shall mean the amounts advanced
by the Incremental Facility Lenders to the Borrower as Incremental
Facility Loans, including, without limitation, Incremental Facility
2003 Loans, under the applicable Incremental Facility Commitment, not
to exceed the amount of the applicable Incremental Facility
Commitment."
(e) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the existing definition of "Incremental
Facility Maturity Date" in its entirety and by substituting the following in
lieu thereof:
"'Incremental Facility Maturity Date' shall mean the maturity
date for any Incremental Facility Loans as set forth in the Notice of
Incremental Facility Commitment applicable thereto, including, in the
case of the Incremental Facility 2003 Loans, the Incremental Facility
2003 Maturity Date."
(f) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the existing definition of "Incremental
Facility Notes" in its entirety and by substituting the following in lieu
thereof:
"'Incremental Facility Notes' shall mean those certain
Incremental Facility Loan promissory notes issued by the Borrower to
each of the Lenders issuing an Incremental
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Facility Commitment, including, without limitation, the Incremental
Facility 2003 Commitment, that requests a promissory note in accordance
with each such Incremental Facility Lender's applicable Incremental
Facility Commitment Ratio, setting forth the terms and provisions with
respect to interest rates and scheduled amortization with respect to
such Incremental Facility Loans in accordance with the terms hereof, in
form and substance acceptable to such Incremental Facility Lender, the
Administrative Agent and the Borrower or, in the case of the
Incremental Facility 2003, substantially in the form of Exhibit S-2."
(g) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the existing definition of "Loan Documents" in
its entirety and by substituting the following in lieu thereof:
"'Loan Documents' shall mean, without limitation, this
Agreement, the Notes, the Security Documents, the Nextel Intercreditor
Agreement, all Requests for Advance, all Requests for Issuance of
Letters of Credit, all Swing Loan Requests, the Certificate of
Financial Condition, the Use of Proceeds Letter, all Performance
Certificates, all Letters of Credit issued hereunder, all Interest
Hedge Agreements with a Lender or any Affiliate of a Lender, any
documents executed in connection with the Incremental Facility Loans,
any fee letters executed by the Borrower in favor of the Administrative
Agent with respect to certain fees payable in connection with the
administration of this Agreement, and any other document or agreement
or certificate (including, without limitation, any legal opinion issued
by counsel for the Borrower or any of its Affiliates and any reliance
letter issued with respect to any such legal opinion) executed or
delivered in connection with or contemplated by this Agreement."
(h) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended in order to incorporate the Final Incremental Facility
Maturity Date, by deleting the existing definition of "Permitted High Yield
Securities" in its entirety and by substituting the following in lieu thereof:
"'Permitted High-Yield Securities' shall mean, collectively,
(a) preferred equity securities issued by the Borrower or Holdco, and
(b) other debt securities issued by Holdco (including, without
limitation, any debt securities convertible into Equity Interests of
Holdco), upon the Borrower's demonstration to the Lead Arrangers of the
Borrower's pro forma compliance with the Financial Covenants and
ability to make all payments of interest and principal when due with
respect to the Loans through the later of the Final Maturity Date or
the Final Incremental Facility Maturity Date (with respect to which any
related Projections may show the final maturity of the Loans being
repaid with the proceeds of new borrowings as long as the projected
Borrower Leverage Ratio at the later of the Final Maturity Date or the
Final Incremental Facility Maturity Date is no greater than 1.00 to
1.00); provided, however, that if such equity securities are issued by
the Borrower, such equity securities shall have no creditor-like rights
or remedies; provided further, however, that in each case, the terms
and conditions of such securities (i) shall provide, among other
things, that (A) in the case of discount notes, neither dividends nor
interest shall be payable (I) in cash at any time prior to February 22,
2004, or (II) at a coupon greater than fifteen percent (15%); (B) in
the case of any such debt or
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equity securities with a cash pay component thereof, the aggregate
principal amount thereof and the interest or dividend rate applicable
thereto shall be no greater than the principal amount and/or the
interest or dividend rate with respect to which the Borrower shall have
provided the Credit Parties with revised Projections, satisfactory to
the Lead Arrangers, assuming issuance of such Permitted High-Yield
Securities and taking into account any Restricted Payments permitted to
be made to make interest or dividend payments with respect to such
Permitted High-Yield Securities and demonstrating the Borrower's pro
forma compliance with the Financial Covenants and ability to make all
payments of interest and principal when due with respect to the Loans
through the later of the Final Maturity Date or the Final Incremental
Facility Maturity Date (which Projections may show the final maturity
of the Loans being repaid with the proceeds of new borrowings as long
as the projected Borrower Leverage Ratio at the later of the Final
Maturity Date or the Final Incremental Facility Maturity Date is no
greater than 1.00 to 1.00); and (C) such securities shall have no
required cash redemptions (other than customary change of control and
asset sale redemption provisions) or principal maturities prior to the
day after the first anniversary of the later of the Final Maturity Date
or the Final Incremental Facility Maturity Date, and (ii) shall be
otherwise reasonably acceptable to the Lead Arrangers in all material
respects."
(i) Article 1 of the Credit Agreement, Definitions, is hereby further
modified and amended by deleting the existing definition of "Reaffirmation and
Consent Agreement" in its entirety and by substituting the following in lieu
thereof:
"'Reaffirmation and Consent Agreement' shall mean,
collectively and individually, (i) that certain Reaffirmation and
Consent Agreement dated as of August 14, 2002, pursuant to which the
Subsidiary Guarantors consented to the Second Amendment to Amended and
Restated Credit Agreement and reaffirmed their respective guaranties
and pledges of security set forth in the Loan Documents, and (ii) any
other Reaffirmation and Consent Agreement entered into from time to
time with respect to this Agreement and the other Loan Documents by the
Subsidiary Guarantors."
2. Amendments to Section 2.1.
(a) Section 2.1 of the Credit Agreement, The Loans, is hereby modified
and amended by adding the following before the period at the end of the
introductory paragraph thereof:
", and as of the Fourth Amendment Date, after giving effect to
any funding of the Incremental Facility 2003 Loans and any repayment of
the Tranche B Loans on such date, Six Hundred Thirty-Nine Million Nine
Hundred Fifty-Five Thousand and 00/100s ($639,955,000.00)."
(b) Section 2.1 of the Credit Agreement, The Loans, is hereby further
modified and amended by adding the following clause (f) to the end of Section
2.1 thereof:
"(f) The Incremental Facility 2003 Loans. The Lenders that
have issued an Incremental Facility 2003 Commitment, severally in
accordance with their respective
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Incremental Facility 2003 Commitment Ratios and not jointly, upon the
terms and subject to the conditions of this Agreement, agree to lend to
the Borrower on the Fourth Amendment Date an amount equal to the
Incremental Facility 2003 Commitment. After the Fourth Amendment Date,
Advances under the Incremental Facility 2003 Commitment may be
continued or converted pursuant to a Notice of Conversion/Continuation
as provided in Section 2.2 hereof; provided, however, there shall be no
increase in the aggregate principal amount of the Incremental Facility
2003 Loans outstanding at any time after the Fourth Amendment Date.
Amounts repaid under the Incremental Facility 2003 Commitment may not
be reborrowed."
3. Amendment to Section 2.2. Section 2.2(a) of the Credit Agreement,
Choice of Interest Rate, Etc., is hereby modified and amended by deleting the
"and" before clause (iii) and by adding the following new clause (iv) after
clause (iii) and before the proviso thereof:
", and (iv) under any Incremental Facility Commitment, shall,
at the option of the Borrower, be made as a Base Rate Advance or a
Eurodollar Advance;"
4. Amendments to Section 2.3.
(a) Section 2.3(a) of the Credit Agreement, On Base Rate Advances, is
hereby modified and amended by deleting the second sentence of Section 2.3(a)
and by substituting the following in lieu thereof:
"Interest on Base Rate Advances then outstanding shall also be
due and payable on the date of any repayment made on the Initial
Maturity Date, the Final Maturity Date or any Incremental Facility
Maturity Date, as applicable."
(b) Section 2.3(b) of the Credit Agreement, On Eurodollar Advances, is
hereby modified and amended by deleting the second sentence of Section 2.3(b)
and by substituting the following in lieu thereof:
"Interest on Eurodollar Advances then outstanding shall also
be due and payable on the date of any repayment made under Sections
2.5, 2.6 or 2.7 hereof and on the Initial Maturity Date, the Final
Maturity Date or any Incremental Facility Maturity Date, as
applicable."
(c) Section 2.3(d) of the Credit Agreement, Interest Upon Default, is
hereby modified and amended by deleting the second sentence of Section 2.3(d)
and by substituting the following in lieu thereof:
"Interest accruing at the Default Rate on the Obligations
shall be payable on demand and in any event on the Initial Maturity
Date, the Final Maturity Date or any Incremental Facility Maturity
Date, as applicable, and shall accrue until the earliest to occur of
(A) waiver of the applicable Event of Default in accordance with
Section 13.12 hereof, (B) agreement by the Majority Lenders to rescind
the charging of interest at the Default Rate, or (C) payment in full of
the Obligations."
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(d) Section 2.3(f) of the Credit Agreement, Applicable Margins for Base
Rate Advances and Eurodollar Advances, is hereby modified and amended by adding
the following new clause (iii) to the end of Section 2.3(f) thereof
"(iii) Advances of the Incremental Facility 2003 Loans. With
respect to any Advance of the Incremental Facility 2003 Loans, the
Applicable Margin shall be, (A) 3.00% per annum with respect to an
Eurodollar Advance, and (B) 1.75% per annum with respect to any Base
Rate Advance."
5. Amendments to Section 2.5.
(a) Section 2.5(b)(i) of the Credit Agreement, Terms of Prepayment or
Reductions, is hereby modified and amended by deleting Section 2.5(b)(i) in its
entirety and by substituting the following in lieu thereof:
"(i) Terms of Prepayments or Reductions. Optional permanent
prepayments of principal of the Term Loans and any Incremental Facility
Loans that are term loans, and permanent reductions of the Revolving
Commitment hereunder, may be made at any time upon three (3) Business
Days' prior irrevocable written notice to the Administrative Agent,
without penalty or premium, provided that such prepayments or
reductions shall be in minimum amounts of $5,000,000 and integral
multiples of $1,000,000; provided, however, that the prior irrevocable
written notice to the Administrative Agent with respect to any
voluntary prepayments of the Term Loans made with proceeds of Advances
under the Incremental Facility 2003 Loans may be made without regard to
the three (3) Business Days period set forth in the immediately
preceding sentence."
(b) Section 2.5(b)(ii) of the Credit Agreement, Application of Payments
or Reductions, is hereby modified and amended by adding the following sentence
after the first sentence of clause (A) thereof:
"Notwithstanding anything to the contrary contained in the
immediately preceding sentence, any voluntary prepayments of the Term
Loans made with proceeds of Advances under the Incremental Facility
2003 Loans shall be applied first to permanently reduce the Tranche B
Loans and then to permanently reduce the Tranche A Loans."
(c) Section 2.5(b)(ii) of the Credit Agreement, Application of Payments
or Reductions, is hereby further modified and amended by deleting the third
sentence of clause (C) in its entirety and by substituting the following in lieu
thereof:
"Notwithstanding the foregoing, the holders of the Tranche B
Loans, the Incremental Facility 2003 Loans and any other Incremental
Facility Loans which are term loans and which the applicable Notice of
Incremental Facility indicates shall be subject to rejection of partial
prepayments by the applicable Incremental Facility Lenders ("Rejectable
Loans"), shall have the right to decline any voluntary partial
prepayment of the Tranche B Loans, the Incremental Facility 2003 Loans
and the Rejectable Loans, as applicable, in which case the amount of
such prepayment shall be applied, on a pro rata basis, to prepay the
Tranche A Loans and the Incremental Facility Loans which are term
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loans (other than the Incremental Facility 2003 and the Rejectable
Loans), if any, then outstanding in the manner set forth above, and
thereafter, on a pro rata basis, to repay the amount of any Revolving
Loans then outstanding and any Incremental Facility Loans which are
revolving loans then outstanding, in each case with a corresponding
permanent reduction in the amount of the Commitments applicable to such
Loans "
6. Amendment to Section 2.6. For purposes of clarification only and not
in any way to delay or extend the terms of repayment, or to change the order of
application of repayment of the Loans or the scheduled reduction in the
Commitments, Section 2.6(e) of the Credit Agreement, Incremental Facility Loans,
is hereby deleted in its entirety and the following substituted in lieu thereof:
"(e) Incremental Facility Loans. (i) Commencing on September
30, 2007, and at the end of each calendar quarter thereafter, the
outstanding principal balance of the Incremental Facility 2003 Loans
then outstanding shall be repaid as set forth below:
Amount of Incremental Annual Amount of
Facility 2003 Loans Incremental Facility
Outstanding to be 2003 Loans Outstanding
Quarters Ending Reduced Each Quarter to be Reduced
--------------- --------------------- ----------------------
September 30, 2007 $38,199,324.89 --
December 31, 2007 $214,004,178.37 $252,203,503.26
Additionally, the Incremental Facility 2003 Loans shall be
repaid as may be required by Section 2.7 hereof. Any unpaid principal
and interest of the Incremental Facility 2003 Loans and any other
outstanding Obligations shall be due and payable in full on the
Incremental Facility 2003 Maturity Date.
(ii) Any unpaid principal and interest of the Incremental
Facility Loans (other than the Incremental Facility 2003 Loans) and any
other outstanding Obligations under any of the Incremental Facility
Commitments (other than the Incremental Facility 2003 Commitment) shall
be due and payable in full on the Incremental Facility Maturity Date
applicable thereto."
7. Amendment to Section 2.7.
(a) Section 2.7(e) of the Credit Agreement, Application of Payments, is
hereby modified and amended by deleting the third to the last sentence of
Section 2.7(e) in its entirety and by substituting the following in lieu
thereof:
"Notwithstanding the foregoing, the holders of the Tranche B
Loans, the Incremental Facility 2003 Loans and any Rejectable Loans
shall have the right to decline any mandatory partial prepayment of the
Tranche B Loans, the Incremental Facility 2003 Loan and the Rejectable
Loans, as applicable, in which case the amount of such prepayment shall
be applied, on a pro rata basis, to prepay the Tranche A Loans and the
Incremental Facility Loans which are term loans (other than the
Incremental Facility 2003 Loans and the Rejectable Loans), if any, then
outstanding in the manner set forth above, and thereafter, on a pro
rata basis, to reduce permanently the Revolving Commitment and the
Incremental Facility Commitment applicable to Incremental
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Facility Loans."
(b) Section 2.7(e) of the Credit Agreement, Application of Payments, is
hereby modified and amended by deleting the last sentence of Section 2.7(e) in
its entirety and by substituting the following in lieu thereof:
"Notwithstanding the foregoing, in the case of (x) the amount
of any prepayment required to be made pursuant to Section 2.7(b) hereof
from the Net Cash Proceeds received by the Borrower and its Designated
Subsidiaries in connection with sale, transfer or other disposition of
any Specified Reduction Assets or (y) the amount of any prepayment
required to be made pursuant to Section 2.7(c) hereof in connection
with the issuance of any Specified High-Yield Securities, the amount of
any such prepayment shall be applied to permanently reduce, on a pro
rata basis, the outstanding principal amount of the Tranche A Loans,
the Tranche B Loans and, to the extent then outstanding, any
Incremental Facility Loans which are term loans, in each case with the
amount allocated to the Tranche A Loans being applied to reduce the
remaining scheduled installments of principal due under the Tranche A
Loans as set forth in Section 2.6(b) hereof in the direct order of
maturity, and the amount allocated to the Tranche B Loans being applied
to reduce the remaining scheduled installments of principal due under
the Tranche B Loans as set forth in Section 2.6(c) hereof in the direct
order of maturity, and the amount the amount allocated to the
Incremental Facility Loans being applied to reduce the remaining
scheduled installments of principal due thereunder in the direct order
of maturity."
8. Amendment to Section 2.9. In connection with implementation of the
Incremental Facility 2003 Loans, Section 2.9 of the Credit Agreement, Manner of
Payment, is hereby amended by deleting the parenthetical "(or, if applicable,
the Incremental Facility Maturity Date)" from clause (c) and by substituting
"(or, if applicable, the Final Incremental Facility Maturity Date)" in lieu
thereof.
9. Amendments to Section 2.16.
(a) Section 2.16 of the Credit Agreement, Incremental Facility Loans,
is hereby modified and amended by deleting the first two sentences of subsection
(a) thereof in their entirety and by substituting the following in lieu thereof:
"Subject to the terms and conditions of this Agreement, the
Borrower may request an Incremental Facility Commitment on any Business
Day; provided, however, that the Borrower may not request an
Incremental Facility Commitment or an Incremental Facility Loan during
the continuance of a Default or Event of Default, including, without
limitation, any Default or Event of Default that would result after
giving effect to any Incremental Facility Loan; and provided further,
that the Borrower may request up to five (5) Incremental Facility
Commitments (each of which commitments may be from more than one
Lender) which may be no less than $50,000,000 and no more than
$250,000,000 in the aggregate, in addition to the outstanding principal
amount of the Incremental Facility 2003 Loans. The Incremental Facility
Maturity Date applicable to (i) the Incremental Facility 2003 Loans
shall not be earlier than the Final Maturity Date, and
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(ii) any of the Incremental Facility Loans, other than the Incremental
Facility 2003 Loans, shall not be earlier than the date which is three
(3) calendar months after the Final Maturity Date, unless in each case
such Incremental Facility Commitments are used to increase the amount
of any of the Commitments hereunder."
(b) Section 2.16 of the Credit Agreement, Incremental Facility Loans,
is hereby further modified and amended by deleting subsection (b) in its
entirety and by substituting the following in lieu thereof:
"(b) Prior to the effectiveness of any Incremental Facility
Commitment, the Borrower shall (i) in connection with the Incremental
Facility 2003 Commitment deliver to the Administrative Agent the Notice
of Incremental Facility 2003 Commitment, and (ii) for any Incremental
Facility Commitment, other than the Incremental Facility 2003
Commitment, (x) deliver to the Administrative Agent and the Lenders a
written notice (each a "Notice of Incremental Facility Commitment"), in
form and substance reasonably satisfactory to the Administrative Agent,
setting forth terms and provisions with respect to interest rates and
scheduled amortization with respect to the proposed Incremental
Facility Loan and (y) provide revised Projections to the Credit
Parties, which shall be in form and substance reasonably satisfactory
to the Lead Arrangers and which shall demonstrate (A) the Borrower's
ability to timely repay such Incremental Facility Commitment and any
Incremental Facility Loans thereunder and (B) the Borrower's pro forma
compliance with the Financial Covenants and ability to make all
payments of interest and principal when due with respect to the Loans
through the Final Maturity Date (which Projections may show the final
maturity of the Loans being repaid with the proceeds of new borrowings
as long as the projected Borrower Leverage Ratio at the Final Maturity
Date or the Final Incremental Facility Maturity Date is no greater than
1.00 to 1.00)."
(c) Section 2.16 of the Credit Agreement, Incremental Facility Loans,
is hereby further modified and amended by deleting clause (iv) of subsection (d)
in its entirety and by substituting the following in lieu thereof:
"(iv) upon the request of any Incremental Facility Lender,
shall be represented by an Incremental Facility Note; and"
(d) Section 2.16 of the Credit Agreement, Incremental Facility Loans,
is hereby further modified and amended by adding the following sentence to the
end of subsection (e) thereof:
"The Incremental Facility 2003 Loans shall be requested by the
Borrower by delivering to the Administrative Agent an Incremental
Facility 2003 Request for Advance."
10. Amendment to Section 10.3. In connection with implementation of the
Incremental Facility 2003 Loans, Section 10.3 of the Credit Agreement, Payments
Subsequent to Acceleration or Maturity, is hereby amended by deleting the
parenthetical "(or, if applicable, the
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Incremental Facility Maturity Date)" therefrom and by substituting "(or, if
applicable, the Final Incremental Facility Maturity Date)" in lieu thereof.
11. Amendment to Section 13.17. Section 13.17 of the Credit Agreement,
Confidentiality, is hereby modified and amended by adding the following sentence
at the end of Section 13.17 thereof:
"Notwithstanding anything herein to the contrary, any party
subject to confidentiality obligations hereunder or under any other
related document (and any employee, representative or other agent of
such party) may disclose to any and all persons, without limitation of
any kind, the U.S. federal income tax treatment of the U.S. federal
income tax structure of the transactions contemplated herein and all
materials of any kind (including opinions or other tax analyses) that
are provided to it relating to such tax treatment and tax structure."
12. Amendments to Exhibits.
(a) Exhibit A to the Credit Agreement, Form of Assignment and
Assumption Agreement, is hereby deleted in its entirety and Exhibit A attached
hereto is substituted in lieu thereof.
(b) Exhibit H to the Credit Agreement, Form of Notice of
Conversion/Continuation, is hereby deleted in its entirety and Exhibit H
attached hereto is substituted in lieu thereof.
(c) The Credit Agreement is hereby modified and amended by
incorporating Exhibit J-2 to the Credit Agreement, Form of Incremental Facility
2003 Request for Advance, attached hereto as an exhibit thereto.
(d) The Credit Agreement is hereby further modified and amended by
incorporating Exhibit S-2 to the Credit Agreement, Form of Incremental Facility
2003 Note, attached hereto as an exhibit thereto.
(e) The Credit Agreement is hereby further modified and amended by
incorporating Exhibit Y to the Credit Agreement, Notice of Incremental Facility
2003 Commitment, attached hereto as an exhibit thereto.
13. No Other Amendments. Except for the amendments, releases,
authorizations and waivers set forth above, the text of the Credit Agreement and
the other Loan Documents shall remain unchanged and in full force and effect,
and the Administrative Agent and the Credit Parties hereby reserve the right to
require strict compliance with the terms of the Credit Agreement and the other
Loan Documents in the future.
14. Conditions to Effectiveness. This Amendment will be effective as of
the date first written above (the "Effective Date"), subject to the occurrence
of each of the following on or before such date:
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(a) The Administrative Agent shall have received counterparts hereof
duly executed by the Borrower and Holdco, and by the Majority Lenders, or solely
with respect to Section 7 hereof, the Majority Pro Rata Lenders and the Majority
Tranche B Lenders, as applicable.
(b) The Administrative Agent shall have received a reaffirmation and
consent agreement, in form and substance reasonably satisfactory to the
Administrative Agent and its counsel, duly executed by each of the Subsidiary
Guarantors.
(c) The Administrative Agent shall have received the Notice of
Incremental Facility 2003 Commitment, duly executed by the Borrower.
(d) The Administrative Agent shall have received the Incremental
Facility 2003 Request for Advance, duly executed by the Borrower.
(e) The Borrower shall have executed and delivered any Incremental
Facility 2003 Notes requested by the Incremental Facility 2003 Lenders.
(f) The Administrative Agent shall have received irrevocable written
notice from the Borrower of the prepayment in full of the Tranche B Loans
pursuant to Section 2.5(b)(i).
(g) The Administrative Agent shall have received a legal opinion, dated
as of the Fourth Amendment Date, of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, as
counsel to Holdco, the Borrower and its Subsidiaries in connection with the
transactions contemplated by this Amendment and the other Loan Documents,
addressed to the Arrangers and the other Credit Parties, in form and substance
reasonably satisfactory to the Lead Arrangers and their counsel.
(h) All of the representations and warranties of Holdco and the
Borrower set forth in the Credit Agreement and this Amendment, other than those
that are expressly made as of a specific date, shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the Effective Date as though made on and
as of such date.
(i) The Credit Parties shall have received payment of all fees and
expenses (including, without limitation, legal fees and expenses) due and
payable on the Effective Date in respect of the Credit Agreement, this Amendment
and the transactions contemplated hereby and thereby.
15. Representations and Warranties. Each of the Borrower and Holdco,
for itself and on behalf of each of its Subsidiaries, agrees, represents and
warrants in favor of the Administrative Agent and the Credit Parties that:
(a) This Amendment has been executed and delivered by duly authorized
representatives of the Borrower and Holdco, and the Credit Agreement, as
modified and amended by this Amendment, constitutes a legal, valid and binding
obligation of the Borrower and Holdco and is enforceable against the Borrower
and Holdco in accordance with its terms,
12
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and by the
application of general equitable principles;
(b) Each representation or warranty of Holdco, the Borrower and the
Designated Subsidiaries set forth in the Credit Agreement is hereby restated and
reaffirmed as true and correct in all material respects on and as of the date of
this Amendment, and after giving effect to this Amendment, as if such
representation or warranty were made on and as of the date of, and after giving
effect to, this Amendment (except to the extent that any such representation or
warranty expressly relates to a prior specific date or period);
(c) No Default or Event of Default with respect to the Borrower or
Holdco has occurred and is continuing; and
(d) As of the date hereof, (i) the property of the Borrower, at a fair
valuation on a going concern basis, will exceed its debt; (ii) the capital of
the Borrower will not be unreasonably small to conduct its business; and (iii)
the Borrower will not have incurred debts, or have intended to incur debts,
beyond its ability to pay such debts as they mature.
16. Effect on the Credit Agreement. Except as specifically provided
herein, the Credit Agreement shall remain in full force and effect, and is
hereby ratified, reaffirmed and confirmed. This Amendment shall be deemed to be
a Loan Document for all purposes.
17. Counterparts. This Amendment may be executed in any number of
separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
18. Delivery of Lender Addenda. Each Credit Party executing this
Amendment shall do so by delivering to the Administrative Agent a Lender
Addendum, substantially in the form of Annex I attached hereto, duly executed by
such Credit Party.
19. Law of Contract. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
BORROWER: SPECTRASITE COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
HOLDCO: SPECTRASITE, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ADMINISTRATIVE
AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
AS LEAD ARRANGER
AND ARRANGER: CIBC WORLD MARKETS CORP.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Director
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
AS LEAD ARRANGER,
ARRANGER AND
SYNDICATION AGENT: CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS BRANCH
By: /s/ SoVonna Day-Xxxxx
--------------------------------
Name: SoVonna Day-Xxxxx
Title: Vice President
By: /s/ Xxxx X'Xxxx
--------------------------------
Name: Xxxx X'Xxxx
Title: Director
AS ARRANGER AND
DOCUMENTATION
AGENT: BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Xxxxx Xxx
--------------------------------
Name: Xxxxx Xxx
Title: Managing Director
AS ARRANGER AND
DOCUMENTATION
AGENT: TD SECURITIES (USA) INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
ANNEX I
FORM OF LENDER ADDENDUM
SPECTRASITE COMMUNICATIONS, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF FEBRUARY 22, 2001
Reference is made to the Amended and Restated Credit Agreement dated as
of February 22, 2001, as amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of October 31, 2001, as amended by that
certain Second Amendment to Amended and Restated Credit Agreement dated as of
August 14, 2002, as amended by that certain Third Amendment to Amended and
Restated Credit Agreement dated as of May 14, 2003 (as further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
by and among SpectraSite Communications, Inc., as borrower, SpectraSite
Holdings, Inc., as a guarantor, CIBC World Markets Corp. and Credit Suisse First
Boston, as joint lead arrangers and bookrunners, CIBC World Markets Corp.,
Credit Suisse First Boston, Bank of Montreal, Chicago Branch and TD Securities
(USA) Inc., as arrangers, Credit Suisse First Boston, as syndication agent, Bank
of Montreal, Chicago Branch and TD Securities (USA) Inc., as co-documentation
agents, Canadian Imperial Bank of Commerce, as administrative agent (the
"Administrative Agent") and the other Credit Parties (as defined in the Credit
Agreement) party thereto. Capitalized terms used herein that are not defined
herein shall have the meanings ascribed to them in the Credit Agreement.
The Borrower has requested that the Majority Lenders agree to amend
certain provisions of the Credit Agreement on the terms and conditions described
in the Fourth Amendment to Amended and Restated Credit Agreement in the form
attached hereto as Exhibit A (the "Fourth Amendment").
By execution and delivery of this Lender Addendum as provided in
Section 18 of the Fourth Amendment, the undersigned Credit Party hereby consents
to and agrees with all of the terms and conditions contained in the Fourth
Amendment and to the extent that the undersigned Credit Party has issued a
Incremental Facility 2003 Commitment in the amount set forth on Schedule I
hereto, the undersigned becomes an Incremental Facility 2003 Lender and a Lender
under the Credit Agreement effective as of the Fourth Amendment Date.
THIS LENDER ADDENDUM SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[SIGNATURE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Lender Addendum
to be duly executed and delivered by their proper and duly authorized officers
as of the Fourth Amendment Date.
--------------------------------
(NAME OF CREDIT PARTY)
By: ____________________________
Name:
Title:
LENDER ADDENDUM
EXHIBIT A
TO ANNEX I
COPY OF FOURTH AMENDMENT
[see attached]
LENDER ADDENDUM
SCHEDULE I
TO
LENDER ADDENDUM
INCREMENTAL FACILITY 2003 COMMITMENT
LENDER INCREMENTAL FACILITY 2003 COMMITMENT
[Name of Lender]
[Address] $_________________
Attention: _____________
Telephone: _____________
Telecopy: ______________
LENDER ADDENDUM
