Exhibit 10.71
AMENDMENT AND WAIVER
AMENDMENT AND WAIVER, dated as of May 7, 1999 (this "Amendment and
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Waiver"), to the Amended and Restated Credit Agreement, dated as of February 5,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among SBA Communications Corporation ("Holdings"), SBA
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Telecommunications, Inc. (the "Borrower"), the several lenders from time to time
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parties thereto (the "Lenders"), Xxxxxx Brothers Inc., as co-arranger, General
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Electric Capital Corporation, as co-arranger and syndication agent, Toronto
Dominion (Texas), Inc., as documentation agent, Barclays Bank PLC, as co-
documentation agent, and Xxxxxx Commercial Paper Inc., as administrative agent
(in such capacity, the "Administrative Agent").
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W I T N E S S E T H:
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WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make,
and have made, certain loans and other extensions of credit to the Borrower;
WHEREAS, Holdings and the Borrower have requested that the Lenders amend
and waive certain provisions in the Credit Agreement as set forth herein;
WHEREAS, the Lenders are willing to consent to the requested amendments and
waivers on and subject to the terms and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
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Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
2. Amendment to the Credit Agreement. Section 1.1 of the Credit
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Agreement is hereby amended by deleting the definition of "Mortgage Requirement"
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in its entirety and substituting in lieu thereof the following:
"'Mortgage Requirement': the requirement that, within 45 days of the
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Closing Date and 60 days after the end of each fiscal quarter thereafter,
there shall have been executed and delivered to the Administrative Agent,
and duly recorded in the appropriate recording offices, Mortgages (i)
covering Towers which during such fiscal quarter most recently ended
contributed at least 80% of Total Tower Revenue (excluding revenue from the
Borrower's lease/sublease business) and (ii)
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Developmental Towers on such date which constitute at least 80% in number
of all Developmental Towers on such date (it being understood that the
Borrower will execute and deliver Mortgages within 45 days of the Closing
Date based upon Total Tower Revenue and number of Developmental Towers as
of November 30, 1998).".
3. Waiver to the Credit Agreement. The requirement of Section 2.10(a) of
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the Credit Agreement that 100% of the Net Cash Proceeds from the issuance of any
Capital Stock (other than the issuance of common stock of Holdings upon the
exercise of the common stock options of Holdings held by directors, officers and
employees of Holdings, the Borrower and its Subsidiaries) be applied on the date
of such issuance towards the prepayment of the Term Loans is hereby waived
solely with respect to the proceeds of the initial public offering of Class A
common stock, par value $0.01 per share, of Holdings; provided that such
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proceeds shall be applied toward repayment of Revolving Credit Loans (which
repayment shall not be accompanied by any reduction of the Revolving Credit
Commitments).
4. Conditions to Effectiveness of Amendment. The amendment referred to
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in Section 2 shall become effective on the date on which the conditions
precedent set forth below shall have been fulfilled (the date such conditions
are fulfilled, the "Amendment Effective Date"):
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(a) The Administrative Agent shall have received counterparts hereof,
duly executed and delivered by Holdings, the Borrower and the Required
Lenders.
(b) On and as of the Amendment Effective Date, and after giving
effect to this Amendment and Waiver and the transactions contemplated
hereby, no Default or Event of Default shall have occurred and be
continuing.
5. Conditions to Effectiveness of Waiver. The waiver referred to in
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Section 3 shall become effective on the date on which the conditions precedent
set forth below shall have been fulfilled (the date such conditions are
fulfilled, the "Waiver Effective Date"):
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(a) The Administrative Agent shall have received counterparts hereof,
duly executed and delivered by Holdings, the Borrower and the Required
Prepayment Lenders.
(b) On and as of the Waiver Effective Date, and after giving effect
to this Amendment and Waiver and the transactions contemplated hereby,
no Default or Event of Default shall have occurred and be continuing.
6. Representations and Warranties. To induce the Agents and the Lenders
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to enter into this Amendment and Waiver, Holdings and the Borrower hereby
jointly and severally represent and warrant to each Agent and each Lender as of
the Amendment Effective Date and the Waiver Effective Date, respectively, that
the representations and warranties made by each of Holdings and the Borrower in
the Loan Documents are true and correct in all material respects on
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and as of the Amendment Effective Date and the Waiver Effective Date,
respectively, before and after giving effect to the effectiveness of this
Amendment and Waiver, as if made on and as of the Amendment Effective Date and
the Waiver Effective Date, respectively, except to the extent such
representations and warranties expressly relate to an earlier date.
7. Payment of Expenses. The Borrower agrees to pay or reimburse the
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Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment and Waiver, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
8. No Other Amendments; Confirmation. Except as expressly amended,
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modified and supplemented hereby, the provisions of the Credit Agreement and the
other Loan Documents are and shall remain in full force and effect.
9. Governing Law; Counterparts. (a) This Amendment and Waiver and the
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rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, the laws of the State of New York.
(b) This Amendment and Waiver may be executed by one or more of the parties
hereto on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. A set
of the copies of this Amendment and Waiver signed by all the parties shall be
lodged with the Borrower and the Administrative Agent. This Amendment and Waiver
may be delivered by facsimile transmission of the relevant signature pages
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
SBA COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: CFO
SBA TELECOMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Sr. Vice President
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XXXXXX BROTHERS INC.,
as Advisor, Co-Arranger and Book Manager
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title: Authorized Signatory
XXXXXX COMMERCIAL PAPER INC., as
Administrative Agent
By: /s/ Xxxxxxx X. X'Xxxxx
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Name: Xxxxxxx X. X'Xxxxx
Title: Authorized Signatory
SYNDICATED LOAN FUNDING TRUST
By: Xxxxxx Commercial Paper Inc., solely as
Asset Manager
By: /s/ Xxxxxxx X. X'Xxxxx
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Name: Xxxxxxx X. X'Xxxxx
Title: Authorized Signatory
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Co-Arranger, Syndication
Agent and as a Lender
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Manager Operations
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TORONTO DOMINION (TEXAS), INC., as
Documentation Agent and as a Lender
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
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BARCLAYS BANK PLC, as Co-Documentation
Agent and as a Lender
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
Title: Associate Director
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BANK OF MONTREAL
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Director
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DRESDNER BANK AG,
New York and Grand Cayman Branches
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: First Vice President
By: /s/ Brain X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
00
XXXXX XXXX XX XXXXXX
By: /s/ X.X. Xxxxxxxx
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Name: X.X. Xxxxxxxx
Title: Managing Director
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THE FIRST NATIONAL BANK OF CHICAGO
By:
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Name:
Title:
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THE CIT GROUP / EQUIPMENT
FINANCING, INC.
By:
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Name:
Title:
00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
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XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: AVP
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FREMONT INVESTMENT & LOAN
By: /s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
Title: Vice President
