Exhibit 99.8
EXECUTION COPY
LOAN AGREEMENT
by and among
CROWN ATLANTIC HOLDING SUB LLC,
as the Borrower,
KEY CORPORATE CAPITAL INC.,
as Agent,
and
THE FINANCIAL INSTITUTIONS LISTED HEREIN
AS OF MARCH 31, 1999
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................1
1.1 Definitions......................................1
1.2 Other Terms.....................................20
1.3 Accounting Terms; Income Taxes..................20
SECTION 2. THE LOANS.........................................21
2.1 The Commitment and the Loans....................21
2.2 Making and Conversion/Continuation of the
Loans.........................................27
2.3 The Notes.......................................28
2.4 Fees............................................28
2.5 Prepayment......................................29
2.6 Reserves or Deposit Requirements, Etc...........32
2.7 Tax Law, Increased Costs, Etc...................32
2.8 Eurodollar Deposits Unavailable or
Interest Rate Unascertainable.................32
2.9 Changes in Law Rendering LIBOR Loans Unlawful...33
2.10 Funding.........................................33
2.11 Indemnity.......................................33
2.12 Capital Adequacy................................34
2.13 Taxes...........................................34
2.14 Right to Remove Affected Bank...................35
SECTION 3. INTEREST; PAYMENTS................................36
3.1 Interest........................................36
3.2 Manner of Payments..............................37
SECTION 4. CLOSING...........................................38
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER....38
5.1 Organization and Powers.........................38
5.2 Authorization...................................38
5.3 Financial Statements............................39
5.4 Projections.....................................39
5.5 Capitalization..................................39
5.6 Subsidiaries....................................40
5.7 Title to Properties; Patents, Trademarks,
Etc.............................................40
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(continued)
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5.8 Litigation; Proceedings.........................40
5.9 Taxes...........................................41
5.10 Absence of Conflicts............................41
5.11 Indebtedness....................................42
5.12 Compliance......................................42
5.13 Statements Not Misleading.......................42
5.14 Consents or Approvals...........................43
5.15 Material Contracts and Commitments..............43
5.16 Employee Benefit Plans..........................44
5.17 Licenses and Registrations......................44
5.18 Material Restrictions...........................45
5.19 Investment Company Act..........................45
5.20 Absence of Material Adverse Effect..............45
5.21 Defaults........................................45
5.22 Real Property...................................45
5.23 Securities Laws.................................45
5.24 Insurance.......................................46
5.25 Labor Disputes..................................46
5.26 Environmental Compliance........................46
5.27 Year 2000.......................................49
5.28 Solvency........................................49
5.29 Transaction Documents...........................49
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
BANKS..............................................50
6.1 Compliance......................................50
6.2 Security Agreements.............................50
6.3 Pledge Agreements...............................51
6.4 Real Property Matters...........................51
6.5 Financing Statements............................52
6.6 Guaranties......................................52
6.7 BAM Purchase Agreement..........................52
6.8 Consummation of Formation Agreement.............52
6.9 No Indebtedness.................................54
6.10 Opinion of Counsel..............................54
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(continued)
Page
6.11 Insurance Certificates..........................54
6.12 Financial Information...........................54
6.13 Borrowing Request and Statement of
Application of Proceeds.........................55
6.14 Organizational Documents........................55
6.15 Due Diligence...................................56
6.16 Lien Searches, Consents and Releases of Liens...56
6.17 No Order, Judgment, Decree or Litigation........56
6.18 No Material Adverse Effect......................57
6.19 Fee Letter; Fees and Expenses...................57
6.20 Legal Approval..................................57
6.21 Other Documents.................................57
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER..............57
7.1 Use of Proceeds.................................57
7.2 Continued Existence; Compliance with Law........57
7.3 Insurance.......................................58
7.4 Obligations and Taxes...........................59
7.5 Financial Statements and Reports................59
7.6 Notices.........................................61
7.7 Maintenance of Property.........................62
7.8 Information and Inspection......................63
7.9 Maintenance of Liens............................63
7.10 Title To Property...............................63
7.11 Environmental Compliance and Indemnity..........63
7.12 Rate Hedging Obligations........................65
7.13 Maintenance of Separate Identity................65
SECTION 8. NEGATIVE COVENANTS OF THE BORROWER.................65
8.1 Indebtedness....................................65
8.2 Liens...........................................66
8.3 Guaranties......................................66
8.4 Rental and Conditional Sale Obligations.........66
8.5 Real Property Interests.........................67
8.6 Capitalized Lease Obligations...................67
8.7 Capital Expenditures............................67
TABLE OF CONTENTS
(continued)
Page
8.8 Notes, Accounts Receivable and Claims...........67
8.9 Capital Distributions...........................68
8.10 Disposal of Property; Mergers; Acquisitions;
Reorganizations.................................69
8.11 Construction of Towers..........................73
8.12 Investments.....................................75
8.13 Amendment of Governing Documents................75
8.14 Financial Covenants.............................75
8.15 Management Agreements and Fees..................77
8.16 Fiscal Year.....................................77
8.17 ERISA...........................................77
8.18 Affiliates......................................77
8.19 Change of Name or Structure.....................77
8.20 Amendments, Waivers or Terminations.............78
8.21 Issuance or Transfer of Membership Interests....78
8.22 Types of Business...............................78
8.23 Regulation U....................................79
8.24 Tower Subsidiary and Other Subsidiaries.........79
SECTION 9. EVENTS OF DEFAULT..................................79
9.1 Non-Payment....................................79
9.2 Failure of Performance in Respect of Other
Obligations....................................79
9.3 Breach of Warranty.............................80
9.4 Cross-Defaults.................................80
9.5 Assignment for Benefit of Creditors............80
9.6 Bankruptcy.....................................80
9.7 Appointment of Receiver; Liquidation...........81
9.8 Judgments......................................81
9.9 Tenant Leases; Transaction Documents...........81
9.10 Impairment of Collateral; Invalidation of any
Loan Document..................................82
9.11 Termination of License or Agreements...........82
9.12 Change of Control..............................83
9.13 Unrestricted Subsidiary........................83
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(continued)
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9.14 Default under Collateral Document..............83
9.15 Condemnation...................................83
9.16 Material Adverse Effect........................83
SECTION 10. REMEDIES..........................................83
10.1 Optional Defaults..............................83
10.2 Automatic Defaults.............................84
10.3 Performance by the Banks.......................84
10.4 Other Remedies.................................84
10.5 Enforcement and Waiver by the Banks............84
SECTION 11. THE AGENT.........................................85
11.1 Appointment....................................85
11.2 Powers.........................................85
11.3 General Immunity...............................85
11.4 Action on Instructions of the Banks............86
11.5 Employment of Agents and Counsel...............86
11.6 Reliance on Documents; Counsel.................86
11.7 Agent's Reimbursement and Indemnification......86
11.8 Rights as a Bank...............................87
11.9 Bank Credit Decision...........................87
11.10 Successor Agent................................87
11.11 Ratable Sharing................................88
11.12 Actions by the Agent and the Banks.............89
SECTION 12. MISCELLANEOUS.....................................89
12.1 Construction...................................89
12.2 Further Assurance..............................89
12.3 Expenses of the Agent and the Banks;
Indemnification................................89
12.4 Notices........................................90
12.5 Waiver and Release by the Borrower.............92
12.6 Right of Set Off...............................92
12.7 Successors and Assigns; Participations.........93
12.8 Applicable Law.................................95
12.9 ENFORCEMENT....................................95
12.10 JURY TRIAL WAIVER..............................96
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(continued)
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12.11 Binding Effect and Entire Agreement; No Oral
Agreements.....................................96
12.12 Counterparts...................................96
12.13 Survival of Agreements.........................97
12.14 Modification...................................97
12.15 Separability...................................98
12.16 Section Headings...............................98
12.17 Termination....................................98
12.18 Interest Limitation............................98
12.19 Confidentiality................................99
12.20 Non-Recourse to CCIC; Limited Recourse to
BAM............................................99
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of
March 31, 1999, by and among CROWN ATLANTIC HOLDING SUB LLC, a
Delaware limited liability company (the "Borrower"), the
FINANCIAL INSTITUTIONS listed on the signature pages hereof, and
KEY CORPORATE CAPITAL INC., as Agent (the "Agent").
R E C I T A L S:
The Borrower is a newly formed company created to
acquire certain towers and tower related assets from Xxxx
Atlantic Mobile and its affiliates. The Borrower desires to
borrow from the Banks up to $250,000,000 on a reducing revolving
credit basis, the proceeds of which will be used in part to
acquire such towers and tower related assets and other
communications tower facilities, to fund the construction of
communications tower facilities, for capital expenditures and for
general corporate purposes.
A G R E E M E N T S:
Accordingly, the Borrower, the Banks and the Agent
agree as follows:
SECTION 1. DEFINITIONS.
1.1 Definitions. All terms typed with leading
capitals are terms defined in this Agreement. For the purposes
of this Agreement, the terms defined in this Section 1 shall
have the meanings set out below.
"Affiliate" means, with respect to any Person, (a) any
other Person which is directly or indirectly controlled by, under
common control with or controlling the first specified Person;
(b) a Person owning beneficially or controlling 5% or more of the
equity interest in such other Person; (c) any officer, director
or partner of such other Person; or (d) any spouse or relative
(by blood, adoption or marriage) of any such individual Person.
The term "control" means possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person whether through the ownership of voting
securities or partnership interests, by contract or otherwise.
"Applicable Margin" means, as of any date of
determination, the percentage determined from the following table
based upon the ratio of Total Debt as of such date to Operating
Cash Flow for the four quarter period then ended or then most
recently ended:
Ratio of Total Debt Applicable Applicable
to Operating Cash Margin for Margin for
Flow: Base Rate Loans: LIBOR Loans:
Greater than 7.0:1.0 1.25% 2.75%
but less than or
equal to 8.25:1.0
Greater than 6.5:1.0 0.75% 2.500%
but less than or
equal to 7.0:1.0
Greater than 6.0:1.0 0.25% 2.250%
but less than or
equal to 6.5:1.0
Greater than 5.0:1.0 0.00% 1.750%
but less than or
equal to 6.0:1.0
Greater than 4.0:1.0 0.00% 1.500%
but less than or
equal to 5.0:1.0
Less than or equal to 0.00% 1.000%
4.0:1.0
"Applicable Percentage" means, as of any date of
determination, the percentage determined from the following table
based upon the Leverage Ratio:
Leverage Ratio: Applicable Percentage:
Greater than or equal to 5.0:1.0 50%
Less than 5.0:1.0 0%;
provided, however, that the Applicable Percentage shall be 100%
if at the time of determination a Possible Default or Event of
Default exists.
"Asset Sale" means the sale by the Borrower or any of
its Subsidiaries to any Person of any assets of the Borrower or
such Subsidiary, other than (a) the sale of assets with an
aggregate value which does not exceed in any fiscal year an
amount equal to $1,250,000 and (b) the trade in or replacement of
assets in the ordinary course of business or the disposition of
any asset which, in the good faith exercise of its business
judgment, the Borrower or such Subsidiary determines is no longer
useful in the conduct of its business.
"BAM" means Cellco Partnership, a Delaware general
partnership, d/b/a Xxxx Atlantic Mobile.
"BAM Purchase Agreement" has the meaning assigned to it
in Section 6.7.
"BAM Sub" means BAM Tower Funding Corporation, a
Delaware corporation that is a wholly owned subsidiary of BAM.
"BAM Sub Guaranty" has the meaning assigned to it in
Section 6.6(b).
"Banking Day" means a day on which the main office of
the Agent is open to the public for the transaction of business,
and on which, with respect to any LIBOR Loan, banks are open for
business in London, England, and quoting deposit rates for dollar
deposits.
"Banks" means the financial institutions listed on the
signature pages of this Agreement and their respective successors
and assigns; the term "Banks" shall include the Issuing Bank.
"Base Rate" means the rate of interest determined and
publicly announced by the Agent from time to time as its prime
rate at its main office in Cleveland, Ohio. The prime rate
functions as a reference rate index, and the Agent may charge
other borrowers more or less than the prime rate. The Base Rate
will automatically change as and when such prime rate changes.
"Base Rate Loans" means those Loans described in
Section 2.1 on which the Borrower shall pay interest at a rate
based on the Base Rate.
"Benefit Arrangement" means any pension, profit-
sharing, thrift or other retirement plan, medical,
hospitalization, vision, dental, life, disability or other
insurance or benefit plan, deferred compensation, stock
ownership, stock purchase, stock option, performance share,
bonus, fringe benefit, savings or other incentive plan, severance
plan or other similar plan, agreement, arrangement or
understanding, established or maintained by the Borrower or any
member of the Controlled Group or to which the Borrower or any
member of the Controlled Group is, or in the preceding six years
was, required to contribute on behalf of its employees or
directors, whether or not such plan, agreement, arrangement or
understanding is subject to ERISA.
"Bidder Services Agreement" means the Bidder Services
Agreement among CCIC, the Borrower and the Tower Subsidiary that
may be entered into pursuant to the Formation Agreement as of the
Closing Date in form and substance reasonably satisfactory to the
Agent.
"Borrower Security Agreement" has the meaning assigned
to it in Section 6.2(a).
"Borrowing Base" means (a) as of any date prior to
October 1, 2001, the product of Test Operating Cash Flow as of
such date times the highest Leverage Ratio permitted as of such
date pursuant to Section 8.14(a), and (b) as of any date on or
after October 1, 2001, the Commitment.
"Borrowing Base Period" means the period from the
Closing through September 30, 2001.
"Build to Suit Agreement" means the Master Build to
Suit Agreement, to be entered into pursuant to the Formation
Agreement as of the Closing Date among BAM on its own behalf and
on behalf of the Transferring Partnerships (as that term is
defined in the Formation Agreement), the Borrower and the Tower
Subsidiary.
"Build to Suit Obligations" means the obligations of
the Tower Subsidiary under the Build to Suit Agreement.
"Capital Distribution" means any dividend, payment or
distribution made, liability incurred or other consideration
given for the purchase, acquisition, redemption or retirement of
any membership interest, capital stock, partnership interest or
other equity interest of a Person or as a dividend, return of
capital or other payment or distribution of any kind to a member,
stockholder or partner of such Person (other than any stock
dividend or stock split or similar distribution payable only in
capital stock of such Person) in respect of such Person's
membership interests, capital stock, partnership interests or
other equity interests.
"Capital Expenditures" means any payments which are
made by a Person for or in connection with the rental, lease,
purchase, construction or use of any real or personal property
the value or cost of which, under GAAP, should be capitalized and
appear on such Person's balance sheet in the category of
property, plant or equipment, without regard to the manner in
which such payments or the instrument pursuant to which they are
made are characterized by such Person or any other Person;
provided, however, that (other than for purposes of calculating
Excess Cash Flow) neither (a) the capitalized portion of the
purchase price payable pursuant to a Qualified Acquisition nor
(b) the capitalized portion of expenditures for the construction
or improvement of communications tower facilities shall
constitute a Capital Expenditure.
"Capitalized Lease Obligations" means, as to any
Person, the obligations of such Person to pay rent or other
amounts under leases of, or other agreements conveying the right
to use real or personal property, which obligations are required
to be classified and accounted for as capital leases on a balance
sheet of such Person, prepared in accordance with GAAP.
"CCIC" means Crown Castle International Corp., a
Delaware corporation.
"CCIC Indenture" means the Indenture dated as of
November 25, 0000, xxxxxxx XXXX xxx Xxxxxx Xxxxxx Trust Company
of New York in respect of CCIC's 10-5/8% Senior Discount Notes
due 2007.
"Closing" and "Closing Date" have the meanings assigned
to them in Section 4.
"Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute thereto.
"Collateral Documents" means all promissory notes,
letters of credit, agreements, assignments, guaranties, financing
statements, certificates and other agreements, instruments and
documents which are required by this Agreement or any other
Collateral Document to be executed or delivered by or on behalf
of the Borrower, any of its Subsidiaries, Holdco, BAM, BAM Sub or
any other Person.
"Commitment" has the meaning assigned to it in Section
2.1(a).
"Controlled Group" means a controlled group of entities
which are treated as a single employer under Sections 414(b),
414(c), 414(m) or 414(o) of the Code of which the Borrower or any
of its Subsidiaries is a part.
"Debt Service" means, for any period, the sum of (a)
all principal payments required to be made by the Borrower and
its Subsidiaries on Total Debt, including, without limitation,
the Loans and Capitalized Lease Obligations, during such period,
and (b) all cash interest payments on, and fees in respect of,
Total Debt, and all fees in respect of the Letters of Credit,
required to be made by the Borrower and its Subsidiaries during
such period including the agency fee payable pursuant to the Fee
Letter but excluding all other fees payable pursuant to the Fee
Letter.
"Default Interest Rate" means a rate of interest equal
to the sum of the Base Rate plus 4.875% per annum.
"Discount Rate" means, with respect to a prepayment or
conversion of a LIBOR Loan on a date other than the last day of
its Interest Period, a rate equal to the interest rate (as of the
date of prepayment or conversion) on United States Treasury
obligations in a like amount as such Loan and with a maturity
approximately equal to the period between the prepayment or
conversion date and the last day of the Interest Period of such
Loan, as determined by the Agent.
"Environmental Claim" means, with respect to any
Person, any written notice, claim, demand, request for
information, citation, summons, order or other communication
(each, a "claim") by any other Person alleging or asserting the
liability of the recipient of such claim for investigatory costs,
cleanup costs, governmental response costs, damages to natural
resources or other property or health, personal injuries, fines
or penalties arising out of, based on or resulting from (a) the
presence or Release of any Hazardous Material at or from any
location, whether or not owned by such Person, or (b) any
violation, or alleged violation, of any Environmental Law. The
term "Environmental Claim" shall include, without limitation, any
claim by any governmental authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant
to any applicable Environmental Law, and any claim by any third
party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the
presence or Release of Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment.
"Environmental Laws" means all provisions of law,
statutes, ordinances, rules, regulations, permits, licenses,
judgments, writs, injunctions, decrees, orders, awards and
standards promulgated by the government of the United States of
America or by any state or municipality thereof or by any court,
agency, instrumentality, regulatory authority or commission of
any of the foregoing regulating, relating to or imposing
liability or a standard of conduct concerning the environment
(including laws and regulations of the FCC and other governmental
agencies related to the exposure to radio-frequency emissions) or
regulating the emission, release or discharge of substances or
radio-frequency energy into the environment.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the regulations thereunder.
"Event of Default" means any of the events specified in
Section 9.
"Excess Cash Flow" means, for any fiscal year,
Operating Cash Flow for such fiscal year less the sum (without
duplication) of (a) all principal, interest and fee payments in
respect of Total Debt made by the Borrower and its Subsidiaries
in such year, (b) cash income taxes paid by the Borrower and its
Subsidiaries in such year, (c) Capital Expenditures, excluding
proceeds of casualty insurance policies reasonably and promptly
applied to replace insured assets, paid in cash by the Borrower
and its Subsidiaries during such year to the extent permitted
pursuant to Section 8.7, (d) capital expenditures included in the
Build to Suit Obligations and paid by the Borrower and its
Subsidiaries during such year to the extent the amount of such
capital expenditures exceeds the principal amount of Loans made
during such year other than Loans advanced for Qualified
Acquisitions, (e) Capitalized Lease Obligation payments made by
the Borrower and its Subsidiaries during such year to the extent
permitted pursuant to Section 8.6, (f) Capital Distributions made
by the Borrower in such year to the extent permitted pursuant to
Section 8.9, and (g) the excess, if any, in Working Capital of
the Borrower and its Subsidiaries as of the end of such year over
the Working Capital of the Borrower and its Subsidiaries as of
the end of the prior year.
"Extraordinary Items" means, to the extent deducted in
calculating Net Earnings, (a) gains or losses from sales,
exchanges and other dispositions of property not in the ordinary
course of business and (b) gains or losses from sales, exchanges
and other dispositions of any Tower, Land Lease Agreement or
management agreement in respect of a Tower, all on an after tax
basis.
"FAA" means the Federal Aviation Administration or any
governmental authority at any time substituted therefor.
"FCC" means the Federal Communications Commission or
any governmental authority at any time substituted therefor.
"Fee Letter" means the letter agreement between the
Agent and CCIC dated as of October 8, 1998, regarding certain
fees.
"Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of Operating Cash Flow for the four
quarter period then ended or most recently ended as of such date
to Historical Fixed Charges as of such date; provided, however,
that the Fixed Charge Coverage Ratio, as of any date prior to the
first anniversary of the Closing Date, means the ratio of
Operating Cash Flow for the period from the Closing through the
end of the quarter then ended or most recently ended as of such
date to Historical Fixed Charges as of such date.
"Formation Agreement" means the Formation Agreement,
dated as of December 8, 1998, among BAM, CCIC, the Transferring
Partnerships (as that term is defined therein) and CCA Investment
Corp., a Delaware corporation.
"GAAP" means generally accepted accounting principles
in effect from time to time in the United States, consistently
applied.
"Global Lease" means the Global Lease Agreement, to be
entered into pursuant to the Formation Agreement as of the
Closing Date, between BAM for itself and on behalf of the
Transferring Partnerships (as that term is defined in the
Formation Agreement) and the Tower Subsidiary.
"Guarantees" means the Tower Subsidiary Guaranty and
any additional guarantees executed and delivered pursuant to
Sections 8.10(b) or 8.10(d) hereof.
"Guarantor" means one who pledges its credit or
property in any manner, or otherwise becomes responsible for the
payment or other performance of the indebtedness, contract or
other obligation of another Person and includes (without
limitation) any guarantor (whether of payment or of collection),
surety, co-maker, endorser or one who agrees conditionally or
otherwise to make any purchase, loan or investment in order
thereby to enable another to prevent or correct a default of any
kind and one who has endorsed (otherwise than for collection or
deposit in the ordinary course of business), or has discounted
with recourse or agreed (contingently or otherwise) to purchase
or repurchase or otherwise acquire or become liable for, any
Indebtedness or who has entered into any agreement for the
purchase or other acquisition of any product, materials or
supplies, or for the making of shipments, or for the payment for
services, if in any such case payment therefor is to be made
regardless of the nondelivery of the product, materials or
supplies or the non-furnishing of the services.
"Hazardous Material" means, collectively, (a) any
petroleum or petroleum products, flammable materials, explosives,
radioactive materials, asbestos, urea formaldehyde foam
insulation, and transformers or other equipment that contain
polychlorinated biphenyls ("PCBs"), (b) any chemicals or other
materials or substances that are now or hereafter become defined
as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other
chemical or other material or substance, exposure to which is now
or hereafter prohibited, limited or regulated under any
Environmental Law.
"Historical Fixed Charges" means, as of any date of
determination, the sum (without duplication) of the aggregate
amount of (a) all Debt Service paid by the Borrower and its
Subsidiaries during the four quarter period then ended or most
recently ended, (b) Capital Expenditures (including Capitalized
Lease Obligations) made by the Borrower and its Subsidiaries
during such four quarter period, (c) cash income taxes paid by
the Borrower and its Subsidiaries during such four quarter period
and (d) Capital Distributions made by the Borrower during such
four quarter period other than Capital Distributions made
pursuant to Section 8.9(a)(iii); provided, however, that for
purposes of determining Historical Fixed Charges as of any date
prior to the first anniversary of the Closing, the period of time
referenced in clauses (a) through (d) above shall be the period
from the Closing through the end of the quarter then ended or
most recently ended as of such date.
"Holdco" means Crown Atlantic Holding Company LLC, a
Delaware limited liability company which owns all of the issued
and outstanding Membership Interests of the Borrower.
"Holdco Pledge Agreement" has the meaning assigned to
it in Section 6.3(a).
"Indebtedness" of any Person means, without
duplication, all liabilities, obligations and reserves,
contingent or otherwise, which, in accordance with GAAP, would be
reflected as a liability on a balance sheet (excluding trade
accounts payable and accrued expenses arising in the ordinary
course of business), and (without duplication) (a) all
obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of
such Person under conditional sale or other title retention
agreements relating to assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred
purchase price of property or services (excluding trade accounts
payable and accrued expenses arising in the ordinary course of
business and not more than ninety days past due), (f) all
Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed by such Person, (g) all obligations or liabilities in
respect of which such Person is a Guarantor, (h) all Capitalized
Lease Obligations of such Person, (i) all Rate Hedging
Obligations, and (j) all obligations of such Person as an account
party to reimburse any bank or any other Person in respect of
letters of credit (including the Letters of Credit) or bankers'
acceptances. The Indebtedness of any Person shall include any
recourse Indebtedness of any partnership in which such Person is
a general partner.
"Interest Expense" means, for any period, the gross
interest expense incurred by the Borrower and its Subsidiaries in
respect of their Indebtedness for such period (including, without
limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capitalized Lease
Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Rate Hedging
Obligations), determined on a consolidated basis, all fees
payable under Section 2.4, the agency fees payable pursuant to
the Fee Letter (but not including any other fees payable pursuant
to the Fee Letter) and any other fees, charges, commissions and
discounts in respect of Indebtedness, including fees payable in
connection with the Letters of Credit. For purposes of the
foregoing, gross interest expense shall be determined after
giving effect to any net payments made or received by the
Borrower with respect to Rate Hedging Obligations.
"Interest Period" means, with respect to any LIBOR
Loan, a period of one, two or three months, selected by the
Borrower, commencing on the date such Loan is made, continued or
converted and ending on the last day of such period. Whenever the
last day of an Interest Period would otherwise occur on a day
other than a Banking Day, the last day of such Interest Period
shall occur on the next succeeding Banking Day; provided,
however, that if such extension of time would cause the last day
of such Interest Period to occur in the next calendar month, the
last day of such Interest Period shall occur on the next
preceding Banking Day; and provided, further, that if the first
day of an Interest Period is the last Banking Day of a month or a
day for which there is no numerically corresponding day in the
appropriate subsequent calendar month, then such Interest Period
shall end on the last Banking Day of the appropriate subsequent
calendar month. The Borrower shall not select any Interest Period
which extends beyond any date on which a payment is required to
be made pursuant to Section 2.1(b) or Section 2.5(b)(i) unless
the sum of the amount available to be drawn under the Commitment
plus the aggregate principal balance of all Base Rate Loans and
all LIBOR Loans with Interest Periods ending prior to such date
is at least equal to the maximum amount that is required to be
paid on such date.
"Issuing Bank" means Key Corporate Capital Inc. in its
capacity as the issuer of the Letters of Credit, or any successor
issuer of the Letters of Credit. The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"Land Lease Agreement" means each lease, license,
easement, right of use or other agreement for real property on
which the Borrower or one of its Subsidiaries owns, operates,
manages or maintains a Tower or other agreement pursuant to which
the Borrower or one of its Subsidiaries owns, operates, manages
or maintains a Tower.
"Letters of Credit" has the meaning assigned to it in
Section 2.1(d).
"Leverage Ratio" means, as of any date of
determination, the ratio of Total Debt as of such date to Test
Operating Cash Flow as of such date.
"LIBOR" means the average (rounded upward to the
nearest 1/16th of 1%) of the per annum rates at which deposits in
immediately available funds in United States dollars for the
relevant Interest Period and in the amount of the LIBOR Loan to
be disbursed or to remain outstanding during such Interest
Period, as the case may be, are offered to the Agent by prime
banks in any Eurodollar market reasonably selected by the Agent,
determined as of 11:00 A.M. London time (or as soon thereafter as
practicable), two Banking Days prior to the beginning of the
relevant Interest Period.
"LIBOR Loans" means those Loans described in Section
2.1 on which the Borrower shall pay interest at a rate based on
the applicable LIBOR Rate.
"LIBOR Prepayment Premium" means, with respect to the
prepayment or conversion of any LIBOR Loan or any other receipt
or recovery of any LIBOR Loan prior to the end of the applicable
Interest Period, whether by voluntary prepayment, acceleration,
conversion to a Base Rate Loan or otherwise, an amount equal to
the sum of (a) the product of (i) the excess, if any, of the rate
of interest then applicable to such Loan pursuant to Section 3.1
at the time of such prepayment or conversion over LIBOR
calculated as of such date, multiplied by (ii) the principal
amount so prepaid, converted or accelerated, as the case may be,
multiplied by (iii) a fraction, the numerator of which is the
number of days remaining in the related Interest Period and the
denominator of which is 360 (taking into consideration the
applicable compounding for the frequency of installment payments
of the Loans being prepaid), plus (b) out-of-pocket costs and
expenses incurred by the Banks and the Agent with respect to such
prepayment.
"LIBOR Rate" means a rate per annum equal to the
quotient obtained (rounded upwards, if necessary, to the nearest
1/100th of 1%) by dividing (a) the applicable LIBOR by (b) 1.00
minus the LIBOR Reserve Percentage.
"LIBOR Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in
reserve requirements) for a member bank of the Federal Reserve
System in respect of Eurocurrency Liabilities (as that term is
defined in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time). The LIBOR Rate
shall be adjusted automatically on and as of the effective date
of any change in the LIBOR Reserve Percentage.
"License" means any license, authorization, permit,
consent, franchise, ordinance, registration, certificate,
agreement, determination or other right filed with, granted by,
or entered into by a federal, state or local governmental
authority which permits or authorizes the ownership,
construction, or management or maintenance of a Tower or the use
of a Tower for communications.
"Licensing Authority" means a governmental authority
that has granted a License.
"Lien" as applied to the property of any Person means:
(a) any mortgage, lien, pledge, charge, lease constituting a
Capitalized Lease Obligation, conditional sale or other title
retention agreement, or other security interest or encumbrance of
any kind in respect of any property of such Person, or upon the
income or profits therefrom; (b) any arrangement, express or
implied, under which any property of such Person is transferred,
sequestered or otherwise identified for the purpose of subjecting
the same to the payment of Indebtedness in priority to the
payment of the general, unsecured creditors of such person; (c)
the filing of, or any agreement to give, any financing statement
under the Uniform Commercial Code or its equivalent of any
jurisdiction in respect of Indebtedness; and (d) in the case of
securities or other equity interests, any purchase option, call
or similar right of a third party with respect to such securities
or other equity interests.
"Loans" has the meaning assigned to it in Section
2.1(a).
"Management Agreement" means the Management Services
Agreement, to be entered into pursuant to the Formation Agreement
as of the Closing Date, between the Borrower and the Tower
Subsidiary.
"Material Adverse Effect" means a material adverse
effect upon or change in (a) the properties, assets, business,
operations, financial condition, prospects, liabilities or
capitalization of Holdco, the Borrower or any Subsidiary of the
Borrower taken as a whole or on the ability of the Borrower or
any Subsidiary of the Borrower to conduct its business or to own
or maintain any Material Towers, (b) the ability of Holdco, the
Borrower, any of its Subsidiaries or any other party to a
Collateral Document (other than the Agent and the Banks) to
perform any of its material obligations hereunder or under any
other Collateral Document to which it is a party, (c) the
validity or enforceability of this Agreement, any Note or any
other Collateral Document, or (d) the rights or remedies of the
Agent or the Banks under this Agreement, the Notes or any other
Collateral Document or at law or in equity or the value of any
material collateral granted to the Agent, for the benefit of the
Banks, pursuant to any Collateral Document. A reduction in the
number of Towers conveyed to the Tower Subsidiary pursuant to the
Formation Agreement at the closing under that agreement shall not
constitute a Material Adverse Effect unless the number of Towers
so conveyed is less than 1227.
"Material Towers" means, as of any date of
determination, any Tower or any group or set of Towers
wheresoever located to which more than 10% of the Operating Cash
Flow for any of the immediately prior four fiscal quarters is
attributable.
"Membership Interest" in Holdco, the Borrower or any
Subsidiary of the Borrower that is a Delaware limited liability
company means the entire ownership or equity interest of a Person
in Holdco, the Borrower or such Subsidiary, including all of such
Person's limited liability company interest, as that term is
defined in the Delaware Limited Liability Company Act (the
"Delaware Act"), and all of such Person's rights and obligations
under the Delaware Act and under the Operating Agreement of
Holdco, the Borrower or such Subsidiary, as the case may be.
"Net Earnings" means the consolidated net income (or
deficit) of the Borrower and its Subsidiaries for the period
involved, after taxes, if any, and after all proper charges and
reserves (excluding, however, Extraordinary Items), all as
determined in accordance with GAAP.
"Notes" has the meaning assigned to it in Section 2.3.
"Obligation" means any obligation of the Borrower (a)
to pay to the Banks the principal of and interest on the Loans
and the Notes in accordance with the terms hereof and thereof,
including, without limitation, any interest accruing after the
date of any filing by the Borrower or any of its Subsidiaries of
any petition in bankruptcy or the commencing of any bankruptcy,
insolvency or similar proceedings with respect to the Borrower or
any of its Subsidiaries, regardless of whether such interest is
allowable as a claim in any such proceeding; (b) in respect of
the contingent liability of the Borrower under all outstanding
Letters of Credit; (c) in respect of any Rate Hedging Obligations
owing to any Bank or any Affiliate of any Bank; (d) to pay,
satisfy or perform any other agreement, liability or obligation
of the Borrower or any other Person to the Agent or any Bank,
arising under this Agreement or any Collateral Document, whether
now existing or hereafter incurred by reason of future advances
or otherwise, matured or unmatured, direct or contingent, joint
or several, including any extensions, modifications or renewals
thereof and substitutions therefor, and including without
limitation all fees, indemnification amounts, costs and expenses,
including interest thereon and reasonable attorneys' fees,
incurred by the Agent or any Bank for the protection and
preservation or enforcement of its rights and remedies arising
hereunder or under the Collateral Documents; (e) to repay to the
Agent and the Banks all amounts advanced at any time by the Agent
or the Banks hereunder or under any Collateral Document,
including, without limitation, advances for principal or interest
payments to prior secured parties, mortgagees, or lienors or
other Persons, or for taxes, levies, insurance, rent or repairs
to, or maintenance or storage of, any of the property of the
Borrower or of any of its Subsidiaries; (f) to perform any
covenant or agreement made with the Agent or the Banks pursuant
to this Agreement or any Collateral Document; (g) to tak any
other action in respect of any other liability of any nature of
the Borrower or any of its Subsidiaries to the Agent or the Banks
under this Agreement or any Collateral Document; or (h) any
renewal, continuation or extension of any of the foregoing.
"Operating Agreement" means the Operating Agreement of
Holdco, the Borrower or any Subsidiary of the Borrower, as the
case may be, as in effect as of the date hereof or as amended in
accordance with Section 8.13.
"Operating Cash Flow" means, with respect to the
Borrower for any period, the Net Earnings for such period plus
(a) provision for taxes based on income or profits of the
Borrower and its Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Net
Earnings, plus (b) Interest Expense of the Borrower and its
Subsidiaries for such period, whether paid or accrued and whether
or not capitalized (including, without limitation, amortization
of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated
with Capitalized Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any)
pursuant to Rate Hedging Obligations), to the extent that any
such expense was deducted in computing such Net Earnings, plus
(c) depreciation, amortization (including amortization of
goodwill and other intangibles) and other non-cash expenses
(excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any
future period) of the Borrower and its Subsidiaries for such
period to the extent that such depreciation, amortization and
other non-cash expenses were deducted in computing such Net
Earnings, minus (d) non-cash items increasing such Net Earnings
for such period (excluding any items that were accrued in the
ordinary course of business), in each case on a consolidated
basis and determined in accordance with GAAP. For purposes of
calculating Operating Cash Flow for any period, each Qualified
Acquisition and each sale or other disposition of any Towers and
related assets, whether by purchase or sale of stock or assets,
which occurs during such period, shall be deemed to have occurred
on the first day of such period; accordingly, the operating cash
flow received by the seller of the Towers and related assets, or
of a management agreement in respect thereof, acquired pursuant
to each Qualified Acquisition shall be included for the entire
period and the Operating Cash Flow relating to any Towers and
related assets, or of a management agreement in respect thereof,
sold or otherwise disposed of during such period shall be
excluded from the calculation of Operating Cash Flow for the
entire period.
"PBGC" means the Pension Benefit Guaranty Corporation
or any governmental authority at any time substituted therefor.
"Pension Plan" means an employee pension benefit plan
as defined in Section 3(2) of ERISA which is subject to the
provisions of Section 302 or Title IV of ERISA or Section 412 of
the Code.
"Permitted Lien" means any of the following Liens:
(a) Liens for taxes or assessments and similar
charges, which are either not delinquent or being contested
diligently and in good faith by appropriate proceedings, and as
to which the Borrower or the affected Subsidiary has set aside
adequate reserves on its books and which do not entail any risk
of loss, forfeiture, foreclosure or sale of the property subject
thereto;
(b) statutory Liens, such as mechanic's,
materialman's, warehouseman's, landlord's, artisan's, xxxxxxx'x,
contractor's, carrier's or other like Liens, (i) incurred in good
faith in the ordinary course of business, (ii) which are either
not delinquent or are being contested diligently and in good
faith by appropriate proceedings, (iii) as to which the Borrower
or the affected Subsidiary has set aside adequate reserves upon
its books or bonded satisfactorily to the Agent and (iv) which do
not entail any risk of loss, forfeiture, foreclosure or sale of
the property subject thereto;
(c) encumbrances consisting of zoning
restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, restrictions on the use of
property or minor irregularities of title, provided that none of
such encumbrances materially impairs the use or value of any
property in the operation of the Borrower's or the affected
Subsidiary's business;
(d) Liens granted by the Borrower securing
conditional sale, rental or purchase money obligations permitted
under Section 8.4, but only in the property which is the subject
of such obligations;
(e) Liens arising under or pursuant to this
Agreement or any Collateral Document or otherwise securing any
Obligation;
(f) Liens in respect of judgments or awards with
respect to which the Borrower or the affected Subsidiary is, in
good faith, prosecuting an appeal or proceeding for review and
with respect to which a stay of execution upon such appeal or
proceeding for review has been secured, and as to which judgments
or awards the Borrower or the affected Subsidiary has established
adequate reserves on its books or has bonded in a manner
satisfactory to the Agent;
(g) pledges or deposits made by the Borrower in
the ordinary course of business to secure payment of worker's
compensation, or to participate in any fund in connection with
worker's compensation, unemployment insurance, old-age pensions
or other social security programs;
(h) Liens granted by the Borrower to secure the
performance of letters of credit, bids, tenders, contracts,
leases, public or statutory obligations, surety, customs, appeal
and performance bonds and other similar obligations incurred in
the ordinary course of business to the extent permitted herein
and not incurred in connection with the borrowing of money, the
obtaining of advances or the payment of the deferred purchase
price of any property;
(i) leasehold rights of parties under Tenant
Leases in the property of the Tower Subsidiary that is the
subject of such leases;
(j) rights to compensation from the Tower
Subsidiary owing under Land Lease Agreements; and
(k) any other Liens listed on Exhibit F hereto or
to which the Required Banks have consented in writing.
"Person" includes natural persons, governmental
agencies and authorities, corporations, business trusts,
associations, companies, limited liability companies, joint
ventures and partnerships.
"Plan" means any employee benefit plan, as defined
under Section 3(3) of ERISA, established or maintained by the
Borrower or any member of the Controlled Group or any such Plan
to which the Borrower or any member of the Controlled Group is,
or in the last eight years was, required to contribute.
"Pledge Agreements" means the Holdco Pledge Agreement,
the Tower Subsidiary Pledge Agreement and any additional pledge
agreements entered into pursuant to Sections 8.10(b) or 8.10(d).
"Possible Default" means an event, condition, situation
or thing which constitutes, or which with the lapse of any
applicable grace period or the giving of notice or both would
constitute, an Event of Default.
"Projected Debt Service" means, as of any date of
determination, the sum of (a) all scheduled Commitment reductions
under Section 2.1(b) during the four quarter period following the
end of the fiscal quarter then ended or then most recently ended,
(b) all principal payments required to be made by the Borrower
and its Subsidiaries on Total Debt, other than the Loans, but
including, without limitation, Capitalized Lease Obligations,
during such subsequent four quarter period, and (c) all Interest
Expense and fees on Total Debt to be incurred by the Borrower and
its Subsidiaries during such subsequent four quarter period. In
calculating Projected Debt Service, (i) the interest rate
applicable during such subsequent four quarter period to any
Indebtedness which does not bear interest at a rate which is
fixed (either by its terms or pursuant to an agreement regarding
Rate Hedging Obligations) for the entire subsequent period shall
be deemed to be the interest rate in effect as of the date of
determination, and (ii) it shall be assumed that the principal
amount of Loans outstanding as of the date of determination will
be outstanding for the subsequent four quarter period subject to
any required commitment reductions.
"Purchase Price", in respect of any Qualified
Acquisition (whether of assets, stock or other equity interests),
means the total consideration payable in connection with such
acquisition, whether payable in cash or other property, and
including all forms of deferred compensation, such as non-compete
agreements, consulting agreements and the like.
"Qualified Acquisition" has the meaning assigned to it
in Section 8.10(b).
"Quarterly Date" means the last day of each March,
June, September and December.
"Ratable Share" means, with respect to any Bank, its
pro rata share of the Commitment, the Letters of Credit or the
Loans. As of the date of this Agreement, the Ratable Shares of
the Banks shall be as listed on Schedule 1.1 attached hereto.
"Rate Hedging Obligations" means any and all
obligations of the Borrower, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all agreements,
devices or arrangements designed to protect the Borrower from the
fluctuations of interest rates, including, but not limited to,
interest rate exchange or swap agreements and interest rate cap
or collar protection agreements, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments
of any of the foregoing.
"Regulatory Change" means the adoption of or any change
in federal, state or local treaties, laws, rules, regulations or
policies or the adoption of or change in any interpretations,
guidelines, directives or requests of or under any federal, state
or local treaties, laws, rules, regulations or policies (whether
or not having the force of law) by any court, governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof.
"Release" shall mean any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor
environment, including, without limitation, the movement of
Hazardous Materials through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
"Reportable Event" means a reportable event as that
term is defined in Title IV of ERISA, excluding, however, such
events as to which the PBGC by regulation has waived the
requirement of Section 4043(a) of ERISA that it be notified
within thirty days of the occurrence of such event (provided that
any failure to timely meet the minimum funding standard of
Section 412 of the Code or of Section 302 of ERISA shall be a
Reportable Event regardless of any waiver of notice by regulation
or the issuance of any such waivers in accordance with Section
412(d) of the Code).
"Required Banks" means, at any time, Banks holding at
least 51% of the then aggregate unpaid principal amount of the
Notes and the stated amount of the outstanding Letters of Credit,
or, if no principal amount of the Notes or any Letter of Credit
is then outstanding, Banks having at least 51% of the Commitment.
"Security Agreements" means the Borrower Security
Agreement, the Tower Subsidiary Security Agreement and any
additional security agreements entered into pursuant to Sections
8.10(b) or 8.10(d).
"Subsidiary" means, with respect to any Person, each
partnership, corporation or limited liability company, the
majority of the outstanding partnership interests, capital stock,
membership interests or voting power of which is (or upon the
exercise of all outstanding warrants, options and other rights
would be) owned, directly or indirectly, at the time in question
by such Person.
"Tenant Leases" means the Global Lease and all other
leases or licenses of any Tower, or of space on any Tower, of the
Borrower or any of its Subsidiaries now existing or hereafter
created or acquired.
"Termination Date" means March 31, 2006.
"Test Operating Cash Flow" means:
(a) as of the Closing Date, an amount to be
calculated on a proforma basis in accordance with the procedure
set forth on Exhibit L attached hereto;
(b) as of any date after the Closing Date but
prior to the first anniversary of the Closing Date, the sum of
(i) Operating Cash Flow for the period from the Closing Date
through the end of the most recently ended month less that
portion of such Operating Cash Flow which is attributable to the
Tenant Leases, and (ii) the product of four times that portion of
Operating Cash Flow for the three month period then ended or most
recently ended which is attributable to the Tenant Leases, or, if
less than three full months have elapsed since the Closing, the
product of Operating Cash Flow which is attributable to the
Tenant Leases for the number of full months that have elapsed
since the Closing times twelve or six (as the case may be,
depending on whether one full month or two full months have
elapsed since the Closing); and
(c) as of any date on or after the first
anniversary of the Closing Date, the sum of (i) Operating Cash
Flow for the four quarter period then ended or then most recently
ended less that portion of such Operating Cash Flow which is
attributable to the Tenant Leases, and (ii) the product of four
times that portion of Operating Cash Flow for the quarter then
ended or most recently ended which is attributable to the Tenant
Leases.
"Total Debt" means, without duplication, all
Indebtedness of the Borrower and its Subsidiaries for borrowed
money, including the Loans, all Capitalized Lease Obligations of
the Borrower and its Subsidiaries, all other Indebtedness of the
Borrower and its Subsidiaries represented by notes or drafts
representing extensions of credit for borrowed money, all other
Indebtedness of other Persons for which the Borrower or any of
its Subsidiaries is a Guarantor, all obligations of the Borrower
and its Subsidiaries evidenced by bonds, debentures, notes or
other similar instruments (including all such obligations to
which any property or asset owned by the Borrower or any
Subsidiary of the Borrower is subject, whether or not the
obligation secured thereby shall have been assumed) and all
obligations of the Borrower or any of its Subsidiaries as an
account party to reimburse any bank or any other Person in
respect of letters of credit (including the Letters of Credit) or
bankers' acceptances.
"Towers" means the communications towers and other
structures, including rooftops, owned or leased by the Borrower
and its Subsidiaries or which are subject to a management
agreement to which the Borrower or a Subsidiary of the Borrower
is a party.
"Tower Subsidiary" means Crown Atlantic Company LLC, a
Delaware limited liability company that is owned 99.999% by the
Borrower and .001% by BAM.
"Tower Subsidiary Guaranty" has the meaning assigned to
it in Section 6.6(a).
"Tower Subsidiary Pledge Agreement" has the meaning
assigned to it in Section 6.3(b).
"Tower Subsidiary Security Agreement" has the meaning
assigned to it in Section 6.2(b).
"Transaction Documents" means the Formation Agreement,
the Global Lease, the Build to Suit Agreement, the Management
Agreement, the Bidder Services Agreement, the Transitional
Services Agreement, the Operating Agreements, the Exclusive
Management Agreement, the conveyance documents required pursuant
to Section 4.2(b) of the Formation Agreement and any other
agreements, documents or instruments delivered in connection with
any of the foregoing.
"Transitional Services Agreement" means the
Transitional Services Agreement among BAM, the Borrower and the
Tower Subsidiary that may be entered into pursuant to the
Formation Agreement as of the Closing Date in form and substance
reasonably satisfactory to the Agent.
"Working Capital" means, as of any date, the excess of
the Borrower's and its Subsidiaries' combined current assets,
other than cash, over their combined current liabilities, other
than the current portion of long term debt, as of such date.
1.2 Other Terms. Except as otherwise specifically
provided in this Agreement, each term not otherwise expressly
defined herein which is defined in the Uniform Commercial Code,
as amended (the "UCC"), as adopted in any applicable
jurisdiction, shall have the meaning assigned to it in the UCC in
effect in such jurisdiction. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine
and neuter forms. All references herein to Sections, Exhibits or
Schedules shall be deemed to be references to Sections of, and
Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Whenever any agreement, promissory note
or other instrument or document is defined in this Agreement or
any Collateral Document, such definition shall be deemed to mean
and include, from and after the date of any amendment,
restatement or modification thereof, such agreement, promissory
note or other instrument or document as so amended, restated or
modified. All terms defined in this Agreement in the singular
shall have comparable meanings when used in the plural and vice
versa. The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement.
1.3 Accounting Terms; Income Taxes. All accounting
terms used in this Agreement which are not expressly defined
herein shall have the respective meanings given to them in
accordance with GAAP, all computations shall be made in
accordance with GAAP, and all balance sheets and other financial
statements shall be prepared in accordance with GAAP. All
financial or accounting calculations or determinations required
pursuant to this Agreement unless otherwise expressly provided
shall be made on a consolidated basis for the Borrower and its
Subsidiaries. The term "income tax" as used herein shall be
deemed to include the earned surplus element of the franchise tax
imposed by the State of Texas on income allocated to Texas.
SECTION 2. THE LOANS.
2.1 The Commitment and the Loans.
(a) Commitment. Subject to the terms and
conditions hereof, during the period from the Closing Date up to
but not including the Termination Date, the Banks severally, but
not jointly, shall make loans to the Borrower in such amounts as
the Borrower may from time to time request but not exceeding in
aggregate principal amount at any one time outstanding
$250,000,000 (as such amount may be reduced from time to time,
the "Commitment"); provided, however, that in no event shall the
aggregate principal amount of such loans plus the aggregate
stated amount of the Letters of Credit exceed at any time the
lesser of the Commitment or the Borrowing Base. All amounts
borrowed by the Borrower pursuant to this Section 2.1(a) and all
amounts drawn under any Letter of Credit and not repaid may be
referred to hereinafter collectively as the "Loans." Each Loan
requested by the Borrower shall be funded by the Banks in
accordance with their Ratable Shares of the requested Loan. A
Bank shall not be obligated hereunder to make any additional Loan
if immediately after making such Loan, the aggregate principal
balance of all Loans made by such Bank plus such Bank's Ratable
Share of any outstanding Letters of Credit would exceed such
Bank's Ratable Share of the Commitment. The Loans may be
comprised of Base Rate Loans or LIBOR Loans, as provided in
Section 2.2.
(b) Commitment Reductions. If the Borrowing Base
as of September 30, 2001, is less than the Commitment, then the
Commitment shall automatically reduce on that date to equal the
Borrowing Base as of that date. The Commitment on September 30,
2001, after giving effect to any reduction pursuant to the
foregoing sentence, may be referred to hereinafter as the
"Revised Commitment". On each date set forth in the table below
(including September 30, 2001), the Revised Commitment shall
automatically further reduce by an amount equal to that
percentage of the Revised Commitment set forth for such date in
such table:
Calendar March 31 June 30 September December 31
Year 30
2001 N/A N/A 1.5% 1.5%
2002 1.875% 1.875% 1.875% 1.875%
2003 5.625% 5.625% 5.625% 5.625%
2004 6.5% 6.5% 6.5% 6.5%
2005 8% 8% 8% 8%
2006 all N/A N/A N/A
remaining
principal
Upon each such reduction, the Borrower shall make the
prepayment of the Loans, if any, required pursuant to
Section 2.5(b)(i).
(c) Repayment and Reborrowing. Prior to the
Termination Date, the Borrower may, at its option, from time to
time prepay all or any portion of the Loans, subject to the
provisions of Section 2.5, and the Borrower may reborrow from
time to time hereunder amounts so paid up to the amount of the
Commitment in effect at the time of reborrowing.
(d) Letters of Credit.
(i) Issuance. Subject to the terms and
conditions hereof, including the provisions of Section 6, the
Borrower may request that the Issuing Bank issue, from time to
time during the period from the Closing Date through the date
that is thirty days prior to the Termination Date, and the
Issuing Bank agrees to issue, from time to time, letters of
credit in an aggregate stated amount not exceeding $25,000,000
(the "Letters of Credit"). No Letter of Credit shall be issued
for a term of more than three hundred sixty-four days, and no
Letter of Credit shall have an expiration date which is later
than the thirtieth Banking Day prior to the Termination Date. No
Letter of Credit shall be issued if after giving effect to such
issuance, the sum of the outstanding principal balance of the
Loans (including amounts drawn on Letters of Credit and not
repaid), plus the aggregate stated amount of outstanding Letters
of Credit, would exceed the lesser of the Commitment and the
Borrowing Base. Each Letter of Credit shall be issued in the
manner and on the conditions set forth in this Section 2.1(d) and
Section 6. Each Letter of Credit shall be in the Issuing Bank's
standard form for letters of credit or in such other form as is
acceptable to the Issuing Bank in form and substance.
(ii) Application. Each request for a Letter of
Credit shall be made to the Issuing Bank by an application on the
Issuing Bank's standard form or in such other manner as the
Issuing Bank may approve. Promptly following the issuance of any
Letter of Credit, the Issuing Bank shall notify the Agent and the
Banks of such issuance.
(iii) Participation by the Banks.
(A) By the issuance of a Letter of
Credit and without any further action on the part of the Issuing
Bank, the Agent or the other Banks in respect thereof, the
Issuing Bank hereby grants to each other Bank, and each other
Bank hereby agrees to acquire from the Issuing Bank, a
participation in such Letter of Credit equal to such Bank's
Ratable Share of the stated amount of such Letter of Credit,
effective upon the issuance of such Letter of Credit; provided,
however, that no Bank shall be required to acquire participations
in any Letter of Credit that would result in its Ratable Share of
the sum of outstanding Loans plus the stated amount of all
outstanding Letters of Credit to be greater than its Ratable
Share of the Commitment. In consideration and in furtherance of
the foregoing, each Bank hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of the Issuing Bank,
in accordance with Section 2.1(d)(iv), such Bank's Ratable Share
of each amount disbursed pursuant to a Letter of Credit;
provided, that payment by the Issuing Bank under such Letter of
Credit against presentation of such draft or document shall not
have constituted gross negligence or willful misconduct of the
Issuing Bank.
(B) Each Bank acknowledges and agrees
that its obligation in respect of participations pursuant to
paragraph (A) above in respect of Letters of Credit is absolute
and unconditional and shall not be affected by any circumstances
whatsoever, including the occurrence and continuance of an Event
of Default or Possible Default, or the reduction or termination
of the Commitment, and that each such payment shall be made
without any offset, abatement, withholding or reduction
whatsoever.
(iv) Letter of Credit Disbursements.
(A) If the Agent has not received from
the Borrower the payment permitted pursuant to paragraph (B) of
this Section 2.1(d)(iv) by 11:00 A.M., Cleveland time, on the
date on which the Issuing Bank has notified the Borrower that
payment of a draft presented under any Letter of Credit will be
made, as provided in such paragraph (B), the Agent shall promptly
notify the Issuing Bank and each other Bank of the disbursement
to be made under such Letter of Credit and, in the case of each
Bank, its Ratable Share of such disbursement. Each Bank shall pay
to the Agent, not later than 1:00 P.M., Cleveland time, on such
date (or, if the Issuing Bank shall elect to defer reimbursement
from the Banks hereunder, such later date as the Issuing Bank
shall specify by notice to the Agent and the Banks), such Bank's
Ratable Share of such disbursement, which the Agent shall
promptly pay to the Issuing Bank. The Agent will promptly remit
to each Bank its share of any amount subsequently received by the
Agent from the Borrower in respect of such disbursement; provided
that amounts so received for the account of any Bank prior to
payment by such Bank of amounts required to be paid by it
hereunder in respect of any disbursement shall be remitted to the
Issuing Bank.
(B) If the Issuing Bank shall receive
any draft presented under any Letter of Credit, the Issuing Bank
shall give notice thereof as provided in paragraph (C) below. If
the Issuing Bank shall pay any draft presented under a Letter of
Credit, the Borrower may pay to the Agent, for the account of the
Issuing Bank, an amount equal to the amount of such draft before
11:00 A.M., Cleveland time, on the Banking Day on which the
Issuing Bank shall have notified the Borrower that payment of
such draft will be made. The Agent will promptly pay any such
amounts received by it to the Issuing Bank.
(C) The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit to
ascertain that the same appear on their face to be in substantial
conformity with the terms and conditions of such Letter of
Credit. The Issuing Bank shall as promptly as reasonably
practicable give oral notification, confirmed in writing, to the
Agent and the Borrower of such demand for payment and the
determination by the Issuing Bank as to whether such demand for
payment was in accordance with the terms and conditions of such
Letter of Credit and whether the Issuing Bank has made or will
make a disbursement thereunder, provided that the failure to give
such notice shall not relieve the Borrower of its obligation to
reimburse such disbursement, and the Agent shall promptly give
each Bank notice thereof.
(D) Any amounts paid by the Issuing Bank
on any Letter of Credit shall be deemed to be a Loan for all
purposes of this Agreement and shall bear interest from the date
of payment by the Issuing Bank at the rates provided in Section
3.1 until paid in full.
(v) Obligation to Repay Letter of Credit
Disbursements, etc. The Borrower assumes all risks in connection
with the Letters of Credit, and the Borrower's obligation to
repay each disbursement under a Letter of Credit shall be
absolute, unconditional and irrevocable under any and all
circumstances and irrespective of:
(A) any lack of validity or
enforceability of any Letter of Credit;
(B) the existence of any claim, setoff,
defense or other right which the Borrower or any other person may
at any time have against the beneficiary under any Letter of
Credit, the Agent, the Issuing Bank or any other Bank (other than
the defense of payment in accordance with the terms of this
Agreement or a defense based on the gross negligence or willful
misconduct of the Issuing Bank) or any other Person in connection
with this Agreement or any other agreement or transaction;
(C) any draft or other document
presented under a 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; and
(D) any other circumstance or event
whatsoever, whether or not similar to any of the foregoing.
It is understood that in making any payment under a
Letter of Credit (I) the Issuing Bank's exclusive reliance as to
any and all matters set forth therein, including reliance on the
amount of any draft presented under such Letter of Credit,
whether or not the amount due to the beneficiary equals the
amount of such draft and whether or not any documents presented
pursuant to such Letter of Credit prove to be insufficient in any
respect, if such document on its face appears to be in order, and
whether or not any such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or
untrue in any respect whatsoever and (II) any noncompliance in
any immaterial respect of the documents presented under a Letter
of Credit with the terms thereof, shall, in each case, not be
deemed willful misconduct or gross negligence of the Issuing
Bank.
(vi) Indemnification. The Borrower shall:
(A) indemnify and hold the Agent and each Bank (including the
Issuing Bank) harmless from any loss resulting from any claim,
demand or liability which may be asserted against the Agent or
such Bank in connection with actions taken under any Letter of
Credit, and (B) reimburse the Agent or such Bank for any fees
or other reasonable expenses paid or incurred by the Agent or
such Bank in connection with any Letter of Credit, other than
any loss or expense that, pursuant to a final non-appealable
judicial determination, is determined to have resulted solely
from the gross negligence or willful misconduct of the Agent or
such Bank.
(vii) Security. Upon the occurrence of any
Event of Default, the Borrower shall, upon demand, pay to the
Issuing Bank the stated amount of all outstanding Letters of
Credit, which amount the Issuing Bank shall hold as security for
the obligations incurred under the Letters of Credit, this
Agreement and the Notes. The payment by the Borrower of such
security shall not terminate the obligations of the Borrower
under this Section 2.1(d).
(viii) Additional Costs. If any Regulatory
Change shall either (A) impose upon, modify, require, make or
deem applicable to the Issuing Bank, the Agent or any Bank (or
its holding company) any reserve requirement, special deposit
requirement, insurance assessment or similar requirement against
or affecting any Letter of Credit issued or to be issued
hereunder, or (B) subject the Issuing Bank, the Agent or any Bank
to any tax, charge, fee, deduction or withholding of any kind
whatsoever, or (C) impose any condition upon or cause in any
manner the addition of any supplement to or increase of any kind
to the Issuing Bank's, the Agent's or any Bank's (or its holding
company's) capital or cost base for issuing such Letter of Credit
which results in an increase in the capital requirement
supporting such Letter of Credit, or (D) impose upon, modify,
require, make or deem applicable to the Issuing Bank, the Agent
or any Bank (or its holding company) any capital requirement,
increased capital requirement or similar requirement such as the
deeming of such Letters of Credit to be assets held by the
Issuing Bank, the Agent or such Bank (or its holding company) for
capital calculation or other purposes and the result of any
events referred to in (A), (B), (C) or (D) above shall be to
increase the costs or decrease the benefit in any way to the
Issuing Bank, the Agent or a Bank (or its holding company) of
issuing, maintaining or participating in such Letters of Credit,
then and in such event the Borrower shall, within ten days after
the mailing of written notice of such increased costs or
decreased benefits to the Agent and the Borrower, pay to the
Issuing Bank, the Agent or such Bank all such additional amounts
which in the Issuing Bank's, the Agent's or such Bank's sole good
faith calculation as allocated to such Letters of Credit, shall
be sufficient to compensate it (or its holding company) for all
such increased costs or decreased benefits. The Issuing Bank's,
the Agent's or such Bank's calculation shall be conclusive absent
manifest error.
(ix) Fees. Each Letter of Credit shall be
issued for a fee equal to the product of the Applicable Margin
applicable to LIBOR Loans as of the date of issuance thereof
times the stated amount thereof, payable upon issuance. The fee
shall be payable to the Agent for the benefit of the Banks in
accordance with their Ratable Shares. In addition, the Borrower
shall pay to the Issuing Bank for its own account its standard
charges for the issuance of letters of credit and for draws upon
letters of credit, which charges, as of the date hereof, are as
follows: (A) $200 per Letter of Credit, payable upon issuance and
(B) .25% of the amount drawn, payable upon a draw under a Letter
of Credit.
(e) Termination or Reduction of Commitment. At any
time prior to the Termination Date, by written notice to the
Agent no later than 11:00 A.M. Cleveland, Ohio time five Banking
Days prior to such termination or reduction, the Borrower may
permanently terminate, or from time to time permanently reduce,
the Commitment. Such notice shall be in writing or by telephonic
communication confirmed by telecopy or other facsimile
transmission on the same day as such telephone notice. Any such
partial reduction hereunder shall be in an amount which is not
less than $2,500,000 or an integral multiple of $1,000,000 in
excess thereof. The Agent shall notify the Banks of any such
reduction or termination of the Commitment.
(f) Termination Date. All Loans, together with all
interest accrued thereon, shall be paid in full no later than the
Termination Date.
(g) Permanent Reductions. All reductions of the
Commitment pursuant to Section 2.1(e), 2.5(c) or any other
provision of this Agreement shall be permanent reductions, and
the Commitment shall not be increased.
2.2 Making and Conversion/Continuation of the Loans.
(a) Making of the Loans.
(i) Each Loan shall be made by the Banks in
such amount as the Borrower shall request, provided that each
borrowing shall be in an amount which is a minimum of (A), with
respect to any LIBOR Loan, $5,000,000, and integral multiples of
$1,000,000 in excess thereof, and (B) with respect to any Base
Rate Loan, $1,000,000 and integral multiples of $500,000 in
excess thereof or such lesser amount as may be equal to the then
unused portion of the Commitment. The obligation of the Banks to
make any Loan is conditioned upon (w) the fact that the sum of
the outstanding principal amount of the Loans, after giving
effect to the making of such Loan, plus the aggregate stated
amount of all outstanding Letters of Credit would not exceed the
Borrowing Base as of the date of such Loan; (x) the fact that no
Possible Default or Event of Default shall then exist or
immediately after the Loan would exist; (y) the fact that all of
the Collateral Documents shall still be in full force and effect;
and (z) the fact that the representations and warranties
contained herein and in the Collateral Documents shall be true
and correct in all material respects as if made on and as of the
date of such borrowing, except to the extent that any thereof
expressly relate to an earlier date.
(ii) Subject to the satisfaction of the
conditions set forth in Section 6, Loans shall be effected at the
principal banking office of the Agent in Cleveland, Ohio, and
shall be made at such times as the Borrower may request by notice
to the Agent no later than 11:00 A.M. Cleveland, Ohio time (A)
three Banking Days prior to the date of a requested LIBOR Loan
and (B) one Banking Day prior to the date of a requested Base
Rate Loan. Such notices shall be in writing, or by telephonic
communication confirmed by telecopy or other facsimile
transmission on the same day as the telephone request, and shall
specify the proposed date and the amount of the requested Loan,
whether it is to bear interest initially at an interest rate
based on the Base Rate or the LIBOR Rate, and the Interest Period
thereof, if applicable.
(iii) Upon receipt of each borrowing notice
for a Loan, the Agent shall promptly notify each Bank of the
type, Interest Period, if applicable, amount and date of the
proposed borrowing or conversion. Not later than 11:00 A.M.
Cleveland time, on the date of a proposed borrowing of a Loan,
each Bank shall provide the Agent at its address specified in
Section 12.4 hereof with immediately available funds covering
such Bank's Ratable Share of the borrowing, and the Agent shall
pay over such immediately available funds to the Borrower.
(b) Conversion/Continuation of the Loans. At the
Borrower's election pursuant to notice given to the Agent not
later than 11:00 A.M. Cleveland, Ohio time three Banking Days
prior to such conversion or continuation, any Base Rate Loan may
be converted to, or any LIBOR Loan may be continued as, as the
case may be, a LIBOR Loan as requested by the Borrower; provided,
however, that each conversion and continuation shall be in an
amount which is a minimum of $5,000,000, and integral multiples
of $1,000,000 in excess thereof; and provided, further, that no
Loan may be continued as or converted to a LIBOR Loan at any time
that an Event of Default or Possible Default exists. If the
Borrower has not timely delivered to the Agent such notice with
respect to any terminating Interest Period, the affected LIBOR
Loan shall convert to a Base Rate Loan at the end of such
Interest Period.
(c) Number of Interest Rate Options. In no event
shall the Borrower have more than five LIBOR Loans outstanding at
any time.
2.3 The Notes. All Loans shall be evidenced by separate
promissory notes payable to the Banks substantially in the form
attached hereto as Exhibit A to be duly executed and delivered by
the Borrower at or prior to the Closing in the principal amount
of the Commitment (which notes, together with any notes issued in
connection with the Letters of Credit, may be referred to herein
as the "Notes"). The Banks may, and are hereby authorized by the
Borrower to, set forth on the grids attached to the Notes, or in
other comparable records maintained by them, the amount of each
Loan, all payments and prepayments of principal and interest
received, the current outstanding principal balance, and other
appropriate information. The aggregate unpaid amount of any Loan
set forth in any records maintained by a Bank with respect to a
Note shall be presumptive evidence of the principal amount owing
and unpaid on such Note. Failure of a Bank to record the
principal amount of any Loan on the grid(s) attached to a Note
shall not limit or otherwise affect the obligation of the
Borrower hereunder or under such Note to repay the principal
amount of such Loan and all interest accruing thereon.
2.4 Fees.
(a) Commitment Fees.
(i) For each fiscal quarter during the
Borrowing Base Period, as of the end of which quarter the
Borrowing Base is greater than $200,000,000, and for each fiscal
quarter ending after the Borrowing Base Period, the Borrower
shall pay to the Agent for the benefit of the Banks a
non-refundable commitment fee of 1/2% per annum (based on a year
having 360 days and actual days elapsed) on the excess of the
aggregate daily average undisbursed amount of the Commitment for
such quarter over the daily average aggregate stated amount of
the Letters of Credit for such quarter; provided, however, that
such commitment fee shall be 1/4% per annum for any such quarter
if as of the end of such quarter the Leverage Ratio is less than
or equal to 3.5 to 1.0. For each fiscal quarter during the
Borrowing Base Period, as of the end of which quarter the
Borrowing Base is less than or equal to $200,000,000, the
Borrower shall pay to the Agent for the benefit of the Banks a
non-refundable commitment fee of (i) 1/8% per annum (based on a
year having 360 days and actual days elapsed) on that portion of
the Commitment that exceeds $200,000,000 and (ii) 1/2% per annum
(based on a year having 360 days and actual days elapsed) on the
amount by which $200,000,000 exceeds the sum of the daily average
outstanding principal amount of the Loans for such quarter plus
the daily average aggregate stated amount of the Letters of
Credit for such quarter.
(ii) Such commitment fee shall (i) commence to
accrue as of the date hereof and continue to and including the
Termination Date, (ii) be determined by the Agent quarterly, and
upon the making of each Loan and the issuance of each Letter of
Credit in an amount in excess of $5,000,000, based on the
financial statements and the Compliance Certificate delivered to
the Banks pursuant to Sections 7.5(b) and (c) (in the case of a
quarterly determination) and the compliance certificate delivered
pursuant to Section 6.12(b) (in the case of the determination of
the commitment fees upon the making of a Loan or issuance of a
Letter of Credit), (iii) be in addition to any other fee required
by the terms and conditions of this Agreement, (iv) be payable
quarterly in arrears on each Quarterly Date and on the date the
Commitment is terminated, and (v) be shared by the Banks in
accordance with their Ratable Shares.
(b) Other Fees. The Borrower shall pay to the
Agent such other fees as are set forth in the Fee Letter.
2.5 Prepayment.
(a) Voluntary Prepayments. By notice to the Agent
(which shall be in writing or by telephonic communication
confirmed by telecopy or other facsimile transmission on the same
day as such telephone notice) no later than 11:00 A.M. Cleveland,
Ohio time on the Banking Day prior to such prepayment (with
respect to any Base Rate Loan) or on the third Banking Day prior
to such prepayment (with respect to any LIBOR Loan), the Borrower
may, at its option, prepay the Loans in whole at any time or in
part from time to time without penalty or premium (except as
provided in Section 2.5(d)); provided, however, that each partial
prepayment of the Loans shall be in the aggregate principal
amount of not less than $1,000,000 or an integral multiple of
$500,000 in excess thereof.
(b) Mandatory Prepayments.
(i) Reduction of Commitment or Borrowing Base.
If at any time the sum of the outstanding principal amount of the
Loans plus the stated amount of all outstanding Letters of Credit
exceeds the lesser of the Commitment or the Borrowing Base, the
Borrower shall immediately prepay the Loans, without penalty or
premium (except that any such prepayment of any LIBOR Loan shall
be made together with the applicable LIBOR Prepayment Premium),
in an amount necessary to cause the sum of the outstanding
principal amount of the Loans plus the stated amount of all
outstanding Letters of Credit not to exceed the lesser of the
Commitment or the Borrowing Base. All accrued interest on the
amount prepaid shall be paid with the prepayment.
(ii) Excess Cash Flow. Within one hundred
twenty days after the end of each fiscal year of the Borrower,
commencing with the fiscal year ending on December 31, 2001, the
Borrower shall make a mandatory prepayment of the Loans in an
amount equal to the Applicable Percentage of Excess Cash Flow, if
any, for such fiscal year. Mandatory prepayments made pursuant to
this Section 2.5(b)(ii) shall be determined from the annual
financial statements for such fiscal year delivered by the
Borrower pursuant to Section 7.5(a) and shall be accompanied by a
certificate signed by the Borrower's chief financial officer
setting forth the calculations from which the amount of such
prepayment was determined.
(iii) Asset Sales. Immediately upon receipt by
the Borrower or any of its Subsidiaries of cash proceeds of any
Asset Sale, the Borrower shall immediately make a mandatory
prepayment of the Loans in an amount equal to such cash proceeds,
net of any costs directly incurred in connection with such Asset
Sale and any taxes reasonably estimated to be payable in
connection with such Asset Sale as certified by the Borrower's
chief financial officer. Together with such prepayment, the
Borrower shall deliver to the Agent a certificate executed by the
Borrower's chief financial officer setting forth the calculation
of the net cash proceeds of such Asset Sale.
(iv) Unapplied Insurance Proceeds. Within 180
days from the date of receipt of any cash payments under any
insurance policy maintained by the Borrower or any of its
Subsidiaries which have not been reinvested in productive assets
of a kind then used or usable in the business of the Borrower or
its Subsidiaries, the Borrower shall make a mandatory prepayment
of the Loans in the amount of such unreinvested or unused
proceeds, net of any costs directly incurred in connection with
receiving payment of such proceeds and any taxes reasonably
estimated to be payable in connection with such receipt as
certified by the Borrower's chief financial officer; provided,
however, that upon and during the continuance of any Event of
Default or Possible Default all such insurance proceeds received
by the Borrower or any Subsidiary shall be applied as a
prepayment of the Loans.
(v) Net Equity and Debt Proceeds. If, on any
date that the Leverage Ratio is greater than 5.0 to 1.0, the
Borrower receives any capital contribution from Holdco or any
other Person, or receives the proceeds of any Indebtedness for
borrowed money or of the sale of debt or equity securities from
Holdco or any other Person, the Borrower shall, within five days
of receipt of such capital contribution or proceeds, make a
mandatory prepayment of the Loans in an amount equal to the
lesser of (A) 50% of such capital contribution or proceeds and
(B) that amount of such capital contribution or proceeds that,
when added to Operating Cash Flow for the four quarter period
then ended or most recently ended, would cause the Leverage Ratio
as of the date of receipt of such capital contribution or
proceeds to equal 5.0 to 1.0; provided, however, that if, as of
the date of such capital contribution or receipt of proceeds, the
Borrower is a party to a legally binding acquisition agreement
for a Qualified Acquisition permitted pursuant to Section 8.10(b)
or the Borrower has received an executed SLA Package (as that
term is defined in the Build to Suit Agreement) from BAM with
respect to construction of a specific Tower or group of Towers,
then the Borrower may use such capital contribution or proceeds
to pay the purchase price of such Qualified Acquisition or to
construct such Tower or Towers. The making of any such mandatory
prepayment shall not be deemed to have cured any Event of Default
resulting from the incurrence of any Indebtedness not permitted
pursuant to Section 8.1.
(c) Application of Prepayments.
(i) Application to LIBOR Prepayment Premium,
Accrued Interest and Principal. All prepayments made pursuant to
this Section 2.5 shall be applied as follows: first, to any LIBOR
Prepayment Premium then due, then to accrued interest and then to
the outstanding principal of the Loans. For purposes of the
calculation of interest and the determination of whether any
LIBOR Prepayment Premium is due in connection with any such
prepayment, such principal prepayments shall be applied first to
the Base Rate Loans and then to the LIBOR Loans with the shortest
remaining Interest Periods.
(ii) Application to the Loans and the
Commitment. Any mandatory prepayment of the Loans (other than
pursuant to Section 2.5(b)(i)) shall cause the Commitment to be
immediately and automatically reduced by the amount of such
prepayment, and each such mandatory reduction shall be applied to
the subsequent Commitment reductions set forth in Section 2.1(b)
in the inverse order of maturity.
(d) LIBOR Prepayment Premium. The Borrower shall
pay to the Agent, for the benefit of the Banks, the applicable
LIBOR Prepayment Premium upon any prepayment or conversion
(whether voluntary or involuntary) of any LIBOR Loan not made on
the last day of the applicable Interest Period.
2.6 Reserves or Deposit Requirements, Etc. If at any
time any Regulatory Change (including without limitation, any
change in Regulation D of the Board of Governors of the Federal
Reserve System) shall impose any reserve and/or special deposit
requirement (other than reserves included in the LIBOR Reserve
Percentage, the effect of which is reflected in the interest rate
of any LIBOR Loan) against assets held by, or deposits in or for
the amount of any loans by, any Bank, and the result of the
foregoing is to increase the cost (whether by incurring a cost or
adding to a cost) to such Bank of taking or maintaining hereunder
any LIBOR Loan or to reduce the amount of principal, interest or
fees received by such Bank with respect to any such Loan, then
such Bank shall notify the Borrower and the Agent of such
occurrence. Thereafter, within ten days after written demand by
such Bank, the Borrower shall pay to such Bank additional amounts
sufficient to compensate and indemnify such Bank for such
increased cost or reduced amount. A statement as to the increased
cost or reduced amount as a result of any event mentioned in this
Section shall be submitted by such Bank to the Agent and to the
Borrower and shall, in the absence of manifest error, be
conclusive and binding as to the amount thereof.
2.7 Tax Law, Increased Costs, Etc. In the event that by
reason of any Regulatory Change, any Bank shall, with respect to
this Agreement or any transaction under this Agreement, be
subjected to any tax, levy, impost, charge, fee, duty, deduction
or withholding of any kind whatsoever (other than any tax imposed
upon the net income of such Bank and other than changes in
franchise taxes), and if any such measure or any other similar
measure shall result in an increase in the costs to such Bank of
making or maintaining any LIBOR Loan or in a reduction in the
amount of principal or interest ultimately receivable by such
Bank in respect of such Loan, then such Bank shall notify the
Borrower and the Agent stating the reasons therefor. The Borrower
shall thereafter pay to such Bank within ten days after written
demand such additional amounts as will compensate such Bank for
such increased cost or reduced amount. A statement as to any such
increased cost or reduced amount shall be submitted by such Bank
to the Agent and to the Borrower and shall, in the absence of
manifest error, be conclusive and binding as to the amount
thereof.
2.8 Eurodollar Deposits Unavailable or Interest Rate
Unascertainable. If any Bank determines that dollar deposits of
the relevant amount for the relevant Interest Period are not
available to it in the applicable Eurodollar market or if the
Agent determines that, by reason of circumstances affecting such
market, adequate and reasonable means do not exist for
ascertaining the LIBOR Rate applicable to such Interest Period,
or if any Bank determines that the LIBOR Rate does not adequately
reflect the cost to such Bank of making such Loan, as the case
may be, the Agent or such Bank shall promptly give notice of such
determination to the Agent and to the Borrower, and any request
for a new LIBOR Loan or notice of conversion of an existing Loan
to a LIBOR Loan given thereafter or previously given by the
Borrower and not yet made or converted shall be deemed a notice
to make a Base Rate Loan.
2.9 Changes in Law Rendering LIBOR Loans Unlawful. If
at any time any Regulatory Change shall make it unlawful for any
Bank to fund any LIBOR Loan which it has committed to make
hereunder with moneys obtained in the applicable Eurodollar
market, such Bank shall notify the Agent and the Borrower, and
the obligation of the Banks to fund such Loan shall, upon the
happening of such event, forthwith be suspended for the duration
of such illegality. If any such change makes it unlawful for any
Bank to continue in effect the funding in the applicable
Eurodollar market of any LIBOR Loan previously made by it
hereunder, such Bank shall, upon the happening of such event,
notify the Agent and the Borrower thereof in writing stating the
reasons therefor, and the Borrower shall, on the earlier of (a)
the last day of the then current Interest Period or (b) if
required by such Regulatory Change on such date as shall be
specified in such notice, either convert all such Loans to Base
Rate Loans or prepay all such Loans in full.
2.10 Funding. Any Bank may, but shall not be required
to, make LIBOR Loans hereunder with funds obtained outside the
United States.
2.11 Indemnity. Without prejudice to any other
provisions of Sections 2.6 through 2.10 or to the obligation of
the Borrower to pay the LIBOR Prepayment Premium pursuant to
Section 2.5(d), the Borrower hereby agrees to indemnify the Agent
and each Bank against any loss or expense which the Agent or any
Bank may sustain or incur as a consequence of the Borrower's
failure to borrow any LIBOR Loan requested pursuant to this
Agreement, or the Borrower's failure to continue any LIBOR Loan
or convert any Base Rate Loan to a LIBOR Loan, in either case
after notice of such continuation or conversion shall have been
given to the Agent pursuant to Section 2.2(b), or any default by
the Borrower in payment when due of any amount due hereunder in
respect of any LIBOR Loan or any prepayment or conversion by the
Borrower of a LIBOR Loan prior to the end of its Interest Period,
whether voluntarily or as required pursuant to the terms hereof,
including, but not limited to, any premium or penalty incurred by
such Bank in respect of funds borrowed by it for the purpose of
making or maintaining such Loan, as determined by such Bank;
provided, however, that such indemnification shall be net of any
LIBOR Prepayment Premium received by such Bank in respect of any
such action or inaction of the Borrower. A statement as to any
such loss or expense shall be submitted by such Bank to the Agent
and the Borrower for payment under the aforesaid indemnification,
which statement shall, in the absence of manifest error, be
conclusive and binding as to the amount thereof.
2.12 Capital Adequacy. If any Bank shall determine that
any Regulatory Change regarding capital adequacy or compliance by
such Bank (or its lending office) with any request or directive
regarding capital adequacy (whether or not having the force of
law) of any governmental authority, central bank or comparable
agency has or would have the effect of reducing the rate of
return on such Bank's capital (or on the capital of such Bank's
holding company) as a consequence of its obligations hereunder to
a level below that which such Bank (or its holding company) could
have achieved but for such Regulatory Change or compliance
(taking into consideration such Bank's policies or the policies
of its holding company with respect to capital adequacy) by an
amount which such Bank deems to be material, then from time to
time, within ten days after demand by such Bank, the Borrower
shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its holding company) for such reduction.
A certificate of such Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods. Failure on the part
of any Bank to demand compensation for any reduction in return on
capital with respect to any period shall not constitute a waiver
of such Bank's rights to demand compensation for any reduction in
return on capital in such period or in any other period. The
protection of this Section shall be available to each Bank
regardless of any possible contention of the invalidity or
inapplicability of the law, regulation or other condition which
shall have been imposed.
2.13 Taxes. All sums payable by the Borrower hereunder
or under the Notes or in respect of the Letters of Credit,
whether of principal, interest, fees, expenses or otherwise,
shall be paid in full, free of any deductions or withholdings for
any and all present and future taxes, levies, imposts, stamps,
duties, fees, assessments, deductions, withholdings, and other
governmental charges and all liabilities with respect thereto
(collectively referred to as "Taxes"). If the Borrower is
prohibited by law from making payments hereunder or under the
Notes or in respect of the Letters of Credit free of such
deductions or withholdings, then the Borrower shall pay such
additional amount as may be necessary in order that the actual
amount received by the Banks after such deduction or withholding
shall equal the full amount stated to be payable hereunder or
under the Notes or in respect of the Letters of Credit. The
Borrower shall pay directly to all appropriate taxing authorities
any and all present and future Taxes, and all liabilities with
respect thereto imposed by law or by any taxing authority on or
with regard to any aspect of the transactions contemplated by
this Agreement or the execution and delivery of this Agreement or
the Notes or the issuance of the Letters of Credit, except for
any Taxes or other liabilities that the Borrower is contesting in
good faith by appropriate proceedings, provided that the Borrower
hereby indemnifies the Agent and each of the Banks and holds them
harmless from and against any and all liabilities, fees or
additional expense with respect to or resulting from any delay in
paying, or omission to pay, Taxes. Within thirty days after
request by the Agent in respect of the payment by the Borrower of
any Taxes, the Borrower shall furnish the Agent with the original
or a certified copy of the receipt evidencing payment thereof,
together with any other information the Agent may reasonably
require to establish to its satisfaction that full and timely
payment of such Taxes has been made. Each Bank shall notify the
Borrower and the Agent of any payment of Taxes required or
requested of it and shall give due consideration to any advice or
recommendation given in response thereto by the Borrower, and
upon notice from the Agent or any Bank that Taxes or any
liability relating thereto (including penalties and interest)
have been paid, the Borrower shall pay or reimburse the Agent or
the paying Bank therefor within ten days of such notice. Without
prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower
contained in this Section shall survive the payment in full of
principal and interest hereunder and under the Notes.
2.14 Right to Remove Affected Bank. In the event that
(a) the Borrower receives a notice under Sections 2.6, 2.7, 2.8,
2.9, 2.11 or 2.12 (if such illegality or condition is not
generally applicable to the Banks) from any Bank, (b) any Bank
makes a demand for compensation from the Borrower pursuant to
Sections 2.6, 2.7, 2.9, 2.11 or 2.12 or (c) any Bank fails for
any reason to make its Ratable Share of any Loan it is required
to make pursuant to Section 2.1(a) (such Bank being referred to
in this Section as the "Affected Bank"), the Borrower, at its
option and in its sole discretion, shall have the right to
designate a replacement Bank that is reasonably acceptable to the
Agent, to purchase for cash the Affected Bank's Loans, if any,
and to assume all of the Affected Bank's Ratable Share of the
Commitment and the Letters of Credit and all of the Affected
Bank's other rights and obligations hereunder without recourse to
or warranty by, or expense to, the Affected Bank, for a purchase
price equal to (i) the principal amount of all of the Affected
Bank's outstanding Loans, plus (ii) any accrued but unpaid
interest thereon, plus (iii) any accrued but unpaid commitment
fees in respect of the Affected Bank's Ratable Share of the
Commitment, plus (iv) any other amounts that may be owing to the
Affected Bank hereunder, including any amount which would be
payable to the Affected Bank pursuant to Sections 2.6, 2.7, 2.9,
2.11 or 2.12. The assignee Bank shall pay to the Agent the fee
set forth in Section 12.7(c) in connection with any assignment
made pursuant to this Section. If any Bank becomes an Affected
Bank pursuant to clause (c) above, then it shall not have the
right to vote on any matter presented to the Banks for a vote
until such time as its failure to make its Ratable Share of a
Loan has been cured or until it has been removed pursuant to this
Section, and any portion of Loans made by it shall be deemed not
to be outstanding solely for purposes of such vote.
SECTION 3. INTEREST; PAYMENTS.
3.1 Interest.
(a) Subject to Section 3.1(c), prior to maturity,
LIBOR Loans shall bear interest at the LIBOR Rate plus the
Applicable Margin and Base Rate Loans shall bear interest at the
Base Rate plus the Applicable Margin.
(b) The Applicable Margin shall be determined by
the Agent quarterly, and upon the making of each Loan and the
issuance of each Letter of Credit in an amount in excess of
$5,000,000, based on the financial statements and the Compliance
Certificate delivered to the Banks pursuant to Sections 7.5(b)
and (c) (in the case of a quarterly determination) and the
compliance certificate delivered pursuant to Section 6.12(b) (in
the case of the determination of the Applicable Margin upon the
making of a Loan or issuance of a Letter of Credit). Any change
in the interest rate on the Loans due to a change in the
Applicable Margin shall be effective on the fifth Banking Day
after delivery of such financial statements or compliance
certificate; provided, however, that if any such quarterly
financial statements and Compliance Certificate indicate an
increase in the Applicable Margin and such financial statements
and certificate are not provided within the time period required
in Section 7.5(b), the increase in the interest rate due to such
increase in the Applicable Margin shall be effective
retroactively as of the fifth Banking Day after the date on which
such financial statements and certificate were due. For purposes
of determining the Applicable Margin prior to the Borrower's
delivery to the Agent of such quarterly financial statements and
Compliance Certificate for the first full quarter after the
Closing, the Leverage Ratio shall be deemed to be greater than
7.0 to 1.0. The Borrower shall deliver to the Banks with each set
of quarterly financial statements which indicate a change in the
Applicable Margin a notice with respect to such change, which
notice shall set forth the calculation of, and the supporting
evidence for, such change.
(c) Upon the occurrence of any Event of Default,
the entire outstanding principal amount of each Loan and (to the
extent permitted by law) unpaid interest thereon and all other
amounts due hereunder shall bear interest, from the date of
occurrence of such Event of Default until the earlier of the date
such Loan is paid in full and the date on which such Event of
Default is cured or waived in writing, at the Default Interest
Rate which shall be payable upon demand.
(d) Interest shall be computed on a Three Hundred
Sixty day year basis calculated for the actual number of days
elapsed. Interest accrued on each Base Rate Loan shall be paid
quarterly in arrears on each Quarterly Date after the date hereof
until such Loan is paid in full and on the date such Loan is paid
in full, and interest accrued on each LIBOR Loan shall be paid on
the last day of the Interest Period thereof and on the date such
Loan is paid in full.
(e) The rate of interest payable on any Note from
time to time shall in no event exceed the maximum rate, if any,
permissible under applicable law. If the rate of interest payable
on any Note is ever reduced as a result of the preceding sentence
and at any time thereafter the maximum rate permitted by
applicable law shall exceed the rate of interest provided for on
such Note, then the rate provided for on such Note shall be
increased to the maximum rate permitted by applicable law for
such period as is required so that the total amount of interest
received by the holder of such Note is that which would have been
received by such holder but for the operation of the preceding
sentence.
3.2 Manner of Payments.
(a) Prior to each Quarterly Date and the end of
each Interest Period, the Agent shall render a statement to the
Borrower of all amounts due to the Agent and the Banks for
principal, interest and fees hereunder. All amounts listed on
each such statement shall be due and payable on the Quarterly
Date or, as the case may be, the last day of such Interest
Period, in respect of which such statement was sent. As to all
other Obligations which become due and payable other than on a
fixed date by their terms, the Agent shall advise the Borrower by
a written statement that they are due and payable, and the
Borrower shall pay the same within ten days of receipt of such
statement. If any amounts are not paid by the Borrower when due
and payable, such amounts shall bear interest at the Default
Interest Rate, and the Banks may then charge any account of the
Borrower for such Obligation in the amount due to the Banks. Any
failure by the Agent to render any such statement or give any
such advice shall in no way relieve the Borrower of any liability
for or obligation to pay any amount due and payable hereunder.
(b) Whenever any payment to be made hereunder,
including without limitation any payment to be made on a Note,
shall be stated to be due on a day that is not a Banking Day,
such payment may be made on the next succeeding Banking Day, and
such extension of time shall in each case be included in the
computation of the interest payable on such Note.
(c) Unless otherwise provided in this Agreement,
all payments or prepayments made or due hereunder or under the
Notes shall be made in immediately available funds by federal
funds wire transfer, and without setoff, deduction or
counterclaim, to the Agent prior to 11:00 A.M., Cleveland time,
on the date when due, at its offices at 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000, or at such other place as may be
designated by the Agent. Funds received after 11:00 A.M.,
Cleveland time, shall be deemed to have been received on the next
Banking Day. To the extent any such payment is made for the
ratable benefit of the Banks, the Agent shall promptly distribute
such payment to the Banks in accordance with their respective
Ratable Shares.
SECTION 4. CLOSING.
The closing of the transactions contemplated by this
Agreement shall take place at the location of and simultaneously
with the closing under the Formation Agreement (provided that the
Borrower shall have given the Agent at least ten Banking Days
prior notice of the date of such closing), or such other date and
place as to which the parties may agree (the "Closing" and the
"Closing Date"). Subject to the terms and conditions hereof, upon
the fulfillment or waiver in writing of all the conditions
precedent set out in Section 6 below, and the delivery to the
Agent of the Notes, the Banks shall make such Loans as the
Borrower may request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
To induce the Banks to enter into this Agreement and to
make the Loans, the Borrower represents and warrants as follows:
5.1 Organization and Powers. The Borrower is a limited
liability company, duly organized, validly existing and in good
standing under the laws of the State of Delaware. The Borrower is
duly qualified or registered to conduct business and in good
standing under the laws of each jurisdiction in which any Tower
is located and of each other jurisdiction in which the character
of its business or the ownership of its assets makes such
qualification or registration necessary, except where failure to
so qualify or register could not reasonably be expected to have a
Material Adverse Effect. The Borrower has all requisite power and
authority to own and operate its properties, to carry on its
business as now conducted and proposed to be conducted, to enter
into this Agreement, the Collateral Documents to which it is a
party, the Management Agreement, the Formation Agreement, the
other Transaction Documents to which it is a party and all other
documents to be executed by it in connection with the
transactions contemplated hereby and thereby and to carry out the
terms hereof and thereof.
5.2 Authorization. All necessary limited liability
company, member, director or other actions on the part of the
Borrower and its Subsidiaries to authorize the execution and
delivery of this Agreement, the Collateral Documents, the
Management Agreement, the Build to Suit Agreement and the other
Transaction Documents to which it or any of its Subsidiaries is a
party, and the performance of the obligations of the Borrower and
its Subsidiaries herein and therein, have been taken. This
Agreement, each Collateral Document, the Management Agreement,
the Build to Suit Agreement and the Transaction Documents to
which the Borrower or any of its Subsidiaries is a party have
been duly authorized and executed and are valid and legally
binding upon each of the Borrower and its Subsidiaries to the
extent it is a party thereto, and enforceable in accordance with
their respective terms, except to the extent that the
enforceability thereof may be limited by bankruptcy, insolvency
or like laws affecting creditors rights generally and the
availability of equitable remedies.
5.3 Financial Statements. Exhibit B attached hereto
contains pro forma financial statements for the Borrower and its
Subsidiaries, including a pro forma balance sheet and income
statements (collectively, the "Financial Statements"). The
Financial Statements disclose all material contingent liabilities
and present fairly, on a pro forma basis, the financial condition
of the Borrower and its Subsidiaries as of the dates and for the
periods indicated and have been prepared consistent with GAAP.
5.4 Projections. Exhibit C attached hereto are the
Borrower's projections for the calendar years 1999 through 2007.
Such projections were prepared on an operating basis. Such
projections represent the Borrower's good faith estimate of
projected future operations as of the date of this Agreement,
have been prepared based on assumptions that the Borrower
believes to be reasonable and assume the consummation of the
transactions contemplated by the Transaction Documents. As of the
date hereof, there are no facts which are known to the Borrower
which the Borrower believes would cause a material adverse change
in such projections.
5.5 Capitalization. The capitalization of Holdco and
the Borrower as of the date hereof is as set forth on Exhibit D
attached hereto. A subsidiary of CCIC and BAM own all of the
issued and outstanding Membership Interests of Holdco; Holdco
owns all of the issued and outstanding Membership Interests of
the Borrower; and the Borrower and BAM own all of the issued and
outstanding Membership Interests of the Tower Subsidiary. All of
the issued and outstanding Membership Interests of the Borrower
and its Subsidiaries have been duly and validly issued and are
fully paid and nonassessable. All of the authorized, issued and
outstanding Membership Interests of the Borrower and its
Subsidiaries are free and clear of any Liens, except as disclosed
on Exhibit D, and except for the Liens in favor of the Agent
pursuant to the Pledge Agreements. None of such Membership
Interests has been issued in violation of the Securities Act of
1933, as amended, or the securities or "Blue Sky" or any other
applicable laws, rules or regulations of any applicable
jurisdiction. Except as set forth on Exhibit D, as of the date
hereof, neither the Borrower nor any of its Subsidiaries has any
commitment or obligation, either firm or conditional, to issue,
deliver, purchase or sell, under any offer, option agreement,
bonus agreement, purchase plan, incentive plan, compensation
plan, warrant, conversion rights, operating agreement, contingent
share agreement, stockholders agreement, partnership agreement or
otherwise, any membership interests, capital stock, partnership
interests or other equity securities or securities convertible
into membership interests, shares of capital stock, partnership
interests or other equity securities.
5.6 Subsidiaries. As of the date hereof, the Borrower
has no Subsidiaries other than the Tower Subsidiary. The Tower
Subsidiary is a Delaware limited liability company. Each
Subsidiary of the Borrower is duly organized, validly existing
and in good standing under the laws of its State of organization
and is duly qualified and in good standing under the laws of each
other jurisdiction in which it owns any Tower or in which the
character of its business or the ownership of its assets makes
such qualification or registration necessary, except where
failure to so qualify or register could not reasonably be
expected to have a Material Adverse Effect. Except as set forth
on Exhibit D, each Subsidiary is a direct or indirect, wholly
owned Subsidiary of the Borrower. Each Subsidiary has all
requisite power and authority to own and operate its properties,
to carry on its business as now conducted and proposed to be
conducted, to enter into and perform the Collateral Documents,
the Management Agreement, the Formation Agreement, the Build to
Suit Agreement and the other Transaction Documents to which it is
a party and all other documents to be executed by it in
connection with the transactions contemplated hereby and thereby
and to carry out the terms hereof and thereof.
5.7 Title to Properties; Patents, Trademarks, Etc. Each
of the Borrower and its Subsidiaries has, and will have after
consummation of the transactions contemplated by the Transaction
Documents, good and marketable title to all of its material
assets, whether real or personal, tangible or intangible, free
and clear of any Liens or adverse claims or interests, except
Permitted Liens. Each of the Borrower and its Subsidiaries owns
or possesses, and will own and possess after giving effect to the
consummation of the transactions contemplated by the Transaction
Documents, the valid right to use all the material patents,
patent applications, patent and know-how licenses, inventions,
technology, permits, trademark registrations and applications,
product designs, applications, processes, trademarks, service
marks, trade names, copyrights and licenses and rights in respect
of the foregoing used or necessary for the conduct of its
business, without any known conflict with the rights of others.
5.8 Litigation; Proceedings. Except as disclosed on
Exhibit E attached hereto, as of the date hereof, (a) there is no
material action, suit, complaint, proceeding, inquiry or
investigation at law or in equity, or by or before any court or
governmental instrumentality or agency, nor any order, decree or
judgment in effect, now pending or, to the best of the Borrower's
knowledge, threatened against or affecting the Borrower, any of
its Subsidiaries, any Material Towers or any of the properties or
rights relating to any Material Towers, and (b) there is no
application, petition, complaint, proceeding or investigation
pending or, to the best of the Borrower's knowledge, threatened,
with respect to any License or which could restrict in any
material manner the ownership, operation or license status of any
Material Towers.
5.9 Taxes. All material Federal, state and local tax
returns, reports and statements (including, without limitation,
those relating to income taxes, withholding, social security and
unemployment taxes, sales and use taxes and franchise taxes)
required to be filed by Holdco, the Borrower or any of the
Borrower's Subsidiaries have been properly filed with the
appropriate governmental agencies in all jurisdictions in which
such returns, reports and statements are required to be filed,
which returns, reports and statements are complete and accurate,
and all taxes and other impositions due and payable have been
timely paid prior to the date on which any fine, penalty,
interest, late charge or loss may be added thereto for
non-payment thereof. As of the date hereof, neither the Borrower,
nor any of its Subsidiaries nor Holdco has filed with the
Internal Revenue Service or any other governmental authority any
agreement or other document extending or having the effect of
extending the period for assessment or collection of any Federal,
state, local or foreign taxes or other impositions. All tax
deficiencies asserted or assessments made as a result of any
examinations conducted by the Internal Revenue Service or any
other governmental authority relating to the Borrower, any of its
Subsidiaries and Holdco have been fully paid or are being
contested in accordance with the provisions of Section 7.4.
Proper and accurate amounts have been withheld by the Borrower,
its Subsidiaries and Holdco from their employees for all periods
to fully comply with the tax, social security and unemployment
withholding provisions of applicable Federal, state, local and
foreign law. The charges, accruals and reserves on the books of
the Borrower, its Subsidiaries and Holdco in respect of any taxes
or other governmental charges are adequate.
5.10 Absence of Conflicts. The execution, delivery and
performance by Holdco, the Borrower and the Borrower's
Subsidiaries of this Agreement, the Collateral Documents, the
Management Agreement, the Build to Suit Agreement and the other
Transaction Documents and all actions and transactions
contemplated hereby and thereby will not (a) violate, be in
conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default (i) under any
provision of the Operating Agreements or other organizational
documents of the Borrower, any of its Subsidiaries or Holdco,
(ii) under any material arbitration award or any material order
of any court or of any other governmental agency or authority,
(iii) under any License relating to any Material Towers or under
which the Borrower or any Subsidiary operates or will operate
after giving effect to the consummation of the Transaction
Documents which breach or default of such License could
reasonably be expected to have a Material Adverse Effect, (iv)
under any applicable law, rule, order or regulation (including
without limitation, (A) the Communications Act of 1934, as
amended, (B) any rule, regulation or policy of the FCC, the FAA
or any other Licensing Authority or (C) Regulations T, U or X of
the Board of Governors of the Federal Reserve System) or (v) in
any material respect under the Transaction Documents, any Land
Lease Agreement, the CCIC Indenture or any material agreement,
instrument or document relating to any Material Towers or to
which the Borrower, any of its Subsidiaries or Holdco is a party,
or by which the Borrower, any of its Subsidiaries or Holdco or
any of their respective properties is bound, or (b) result in the
creation or imposition of any Lien of any nature whatsoever,
other than those Liens arising hereunder or under the Collateral
Documents, upon any of the properties of the Borrower, any of its
Subsidiaries or Holdco.
5.11 Indebtedness. Neither the Borrower, nor any of its
Subsidiaries nor Holdco has any Indebtedness of any nature,
whether due or to become due, absolute, contingent or otherwise,
including Indebtedness for taxes and any interest or penalties
relating thereto, except (a) liabilities reflected in the
Financial Statements, (b) the liability of the Borrower to pay
legal and accounting fees and reasonable closing expenses in
connection with this Agreement, (c) liabilities disclosed on
Exhibit F attached hereto and (d) Indebtedness permitted pursuant
to Section 8.1.
5.12 Compliance. Neither the Borrower nor any of its
Subsidiaries nor the construction, ownership or operation of any
Tower is in material violation of any provision of the Operating
Agreement or other organizational documents of the Borrower or
any of its Subsidiaries or any statute, ordinance, law, rule,
regulation or order of the United States of America, the FCC, the
FAA, or any other federal, state, county, municipal or other
governmental agency or authority applicable to it, any material
portion of its properties, the maintenance of any Material Towers
or the conduct of its business. Neither the Borrower nor any of
its Subsidiaries has violated or breached in any material respect
the provisions of any material indenture, License, agreement,
note, lease or other instrument or document to which it is a
party or by which it is bound, nor does there exist any material
default, or any event or condition which, upon notice or lapse of
time, or both, would become a material default, under any such
material indenture, License, agreement, note, lease, or other
instrument or document. Each of the Borrower and its Subsidiaries
has the legal right and authority, including without limitation,
necessary authorizations from the FCC and the FAA, to conduct its
business as now conducted or proposed to be conducted.
5.13 Statements Not Misleading. No statement,
representation or warranty made by the Borrower, any of its
Subsidiaries, Holdco or any other party (other than the Agent and
the Banks) in or pursuant to this Agreement or the Exhibits
attached hereto or any of the Collateral Documents contains or
will contain any untrue statement of a material fact, nor omits
or will omit to state a material fact necessary to make such
statement not misleading or otherwise violates any federal or
state securities law, rule or regulation. There is no fact known
to the Borrower (other than matters of a general economic nature)
that has had or could reasonably be expected to have a Material
Adverse Effect and that has not been disclosed herein.
5.14 Consents or Approvals. No material consent,
approval or authorization of, or filing, registration or
qualification with, any governmental authority or any other
Person (including, without limitation, the FCC, the FAA or any
other Licensing Authority) is required to be obtained by the
Borrower, any of its Subsidiaries or Holdco in connection with
the execution, delivery or performance of this Agreement, any
Collateral Document, the Management Agreement, the Build to Suit
Agreement or any other Transaction Document (other than any of
the foregoing that may be required in connection with the Tower
Subsidiary's performance of its obligations under the Build to
Suit Agreement), including, without limitation, in connection
with the granting of liens and security interests in the
Membership Interests and assets of the Borrower and its
Subsidiaries, that has not already been obtained or completed,
except for the filing of financing statements and other actions
expressly required to be taken pursuant to the Collateral
Documents.
5.15 Material Contracts and Commitments. Exhibit G
attached hereto contains a true and complete description of all
material contracts, licenses and commitments of the Borrower,
each of its Subsidiaries and Holdco as of the Closing Date (after
giving effect to the transactions contemplated by the Transaction
Documents), whether oral or written, including, without
limitation, (a) those governing any Indebtedness; (b) any
security agreement, pledge agreement, mortgage or guaranty; (c)
management, construction supervision, service or employment
agreements, conditional sales contracts or leases of real or
personal property, which involve expenditures in excess of
$500,000 in any single case; (d) collective bargaining
agreements; (e) contracts or commitments for the future purchase
or sale of goods, other than those which involve the payment or
receipt of less than $500,000 in any single case; (f) contracts
or commitments which involve a Capital Expenditure in excess of
$500,000 in any single case; (g) bonus, pension, retirement,
insurance or other employee benefit plans; (h) all Licenses; (i)
all Tenant Leases; and (j) all management agreements. All of the
agreements, contracts and commitments listed on Exhibit G are in
full force and effect without material default. Exhibit G further
identifies each such Tenant Lease which requires consent to the
granting of a Lien in favor of the Agent, for the benefit of the
Banks, on the rights of the Borrower or any Subsidiary which is a
party to such contract. The Borrower has made available to the
Agent true and complete copies of all of the agreements,
contracts and commitments listed on Exhibit G.
5.16 Employee Benefit Plans. Exhibit H contains a true
and complete list of all Plans maintained by the Borrower or any
member of the Controlled Group. Neither the Borrower nor any
member of the Controlled Group has, or will have after giving
effect to the consummation of the transactions contemplated by
the Transaction Documents, any liability, or reasonably
anticipates any accrued and unpaid liability, of any kind
(including any withdrawal liability under Section 4201 of ERISA)
which is in excess, in the aggregate, of $500,000, to or in
respect of any Plan or Benefit Arrangement. With respect to the
Plans and Benefit Arrangements currently maintained by the
Borrower or any member of the Controlled Group: (a) each Plan
that is intended to be qualified under Code Section 401(a) is so
qualified and has been so qualified since its adoption, and each
trust forming a part thereof is exempt from tax under Code
Section 501(a); (b) each Plan complies in all material respects
with all applicable requirements of law, has been administered in
accordance with its terms and all required contributions have
been made; (c) neither the Borrower nor any member of the
Controlled Group knows or has reason to know that the Borrower or
any member of the Controlled Group has engaged in a transaction
which would subject it to any tax, penalty or liability under
ERISA or the Code for any prohibited transaction; and (d) no Plan
is subject to the minimum funding requirements under ERISA
Section 302 or Code Section 412 or is a defined benefit plan (as
defined under ERISA Section 3(35) or Code Section 414(j)). No
Plan or Benefit Arrangement maintained by the Borrower or any
member of the Controlled Group or to which the Borrower or any
member of the Controlled Group is required to contribute is (i) a
multiple employer welfare arrangement (as defined in ERISA
Section 3(40)), (ii) a multiemployer plan (as defined in ERISA
Section 4001(a)(3)), or (iii) a multiple employer plan (as
defined in ERISA Section 4063).
5.17 Licenses and Registrations. The Licenses shown on
Exhibit G constitute as of the Closing Date (after giving effect
to the transactions contemplated by the Transaction Documents)
all of the material Licenses which are necessary for the lawful
ownership, construction, management or operation of Towers
(including Towers acquired pursuant to the Transaction Documents)
or of the business of the Borrower or of any of its Subsidiaries
in the manner and to the full extent they are currently (or after
giving effect to the consummation of the Transaction Documents,
will be) owned, constructed, managed and operated. Exhibit G sets
forth a correct and complete list as of the Closing Date
(after giving effect to the transactions contemplated by the
Transaction Documents) of each pending application for a License
filed by the Borrower or any of its Subsidiaries. Subject only
to the submission of routine informational filings concerning
name changes which will be submitted no later than ten days
following the Closing, all of the material Licenses have been
duly and validly issued to and are legally held by the Borrower
and its Subsidiaries and are in full force and effect without
condition (after giving effect to the transactions contemplated
by the Transaction Documents) except those of general
application. The material Licenses have been issued in compliance
with all applicable laws and regulations, are legally binding and
enforceable in accordance with their terms and are in good
standing. The Borrower knows of no facts or conditions which
would constitute grounds for any Licensing Authority to deny any
pending material application for a License with respect to any
Material Towers, to suspend, revoke, materially adversely modify
or annul any License with respect to any Material Towers or to
impose a material financial penalty on the Borrower or any of its
Subsidiaries. All Material Towers that are required to be
registered with the FCC have either been so registered or are in
the process of being registered, and all information submitted in
connection with such registrations is true and complete in all
material respects.
5.18 Material Restrictions. Neither the Borrower nor
any of its Subsidiaries is a party to any agreement or other
instrument or subject to any other restriction that materially
and adversely affects or could materially and adversely affect
its business, property, assets, operations or condition,
financial or otherwise.
5.19 Investment Company Act. The Borrower (a) is not an
investment company as that term is defined in the Investment
Company Act of 1940, as amended, (b) does not directly or
indirectly control, and is not controlled by a company which is,
an investment company as that term is defined in such act and (c)
is not otherwise subject to regulation under such act.
5.20 Absence of Material Adverse Effect. No Material
Adverse Effect has occurred.
5.21 Defaults. No Possible Default or Event of Default
now exists or will exist upon the making of any Loan.
5.22 Real Property. Exhibit I attached hereto lists as
of the Closing Date, after giving effect to the consummation of
the transactions contemplated by the Transaction Documents, (a)
all real estate owned by the Borrower or any of its Subsidiaries,
and (b) all Land Lease Agreements and other leases pursuant to
which the Borrower or any of its Subsidiaries has acquired a
leasehold interest in real estate.
5.23 Securities Laws. No proceeds of any Loan will be
used by the Borrower or its Subsidiaries to acquire any security
in any transaction which is subject to Section 13 or 14 of the
Securities Exchange Act of 1934, as amended. Neither the
registration of any security under the Securities Act of 1933, as
amended, or the securities laws of any state, nor the
qualification of an indenture in respect thereof under the Trust
Indenture Act of 1939, as amended, is required in connection with
the consummation of this Agreement or any of the Transaction
Documents or the execution and delivery of the Notes.
5.24 Insurance. All policies of insurance of any kind
or nature owned by or issued to the Borrower or any of its
Subsidiaries, including, without limitation, policies of fire,
theft, public liability, property damage, other casualty,
employee fidelity, worker's compensation, employee health and
welfare, title, property and liability insurance, comply with the
requirements of Section 7.3, are in full force and effect and are
of a nature and provide such coverage as is sufficient and as is
customarily carried by companies of the size and character of the
Borrower or such Subsidiary and engaged in a similar business. In
the past three years, neither the Borrower nor any of its
Subsidiaries has been refused insurance for which it applied or
had any policy of insurance terminated (other than at its
request).
5.25 Labor Disputes. There are no material strikes,
unfair labor practice charges or other labor disputes or
grievances pending or, to the best of the Borrower's knowledge,
threatened against the Borrower or any of its Subsidiaries.
Neither the Borrower nor any of its Subsidiaries has received any
written complaints, and has no knowledge of any threatened
complaints, nor to the best of the Borrower's knowledge are any
such complaints on file with any Federal, state or local
governmental agency, alleging material employment discrimination
by the Borrower or any of its Subsidiaries. All payments due from
the Borrower or any of its Subsidiaries pursuant to the
provisions of any collective bargaining agreement have been paid
or accrued as a liability on the books of the Borrower or such
Subsidiary.
5.26 Environmental Compliance.
After giving effect to the consummation of the
transactions contemplated by the Formation Agreement:
(a) The Borrower and its Subsidiaries have
obtained all material permits, licenses and other authorizations,
and have filed all material certificates and reports, that are
required under all Environmental Laws, are in material compliance
with all terms and conditions of all such permits, licenses and
authorizations, and the Borrower, its Subsidiaries and their
properties are in material compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, including, without
limitation, all Environmental Laws in all jurisdictions in which
the Borrower or any of its Subsidiaries owns, maintains or
manages a Tower, a facility or site, arranges or has arranged for
disposal or treatment of Hazardous Materials, solid waste or
other wastes, accepts or has accepted for transport any Hazardous
Materials, solid waste or other wastes or holds or has held any
interest in real property or otherwise.
(b) No Environmental Claim has been issued, no
complaint has been filed, no penalty has been assessed and no
litigation, proceeding, investigation or review is pending or, to
the best of the Borrower's knowledge, threatened by any Person
with respect to any alleged failure by the Borrower or any of its
Subsidiaries or any predecessor owner or operator of any of their
respective properties to comply in any material respect with any
Environmental Law or to have any material permit, license or
authorization required in connection with the conduct of their
respective businesses or with respect to any generation,
treatment, storage, recycling, transportation, use, disposal or
Release of any Hazardous Materials generated by them or with
respect to any real property in which the Borrower or any of its
Subsidiaries holds or has held an interest or any past or present
operation of the Borrower or any of its Subsidiaries.
(c) There are no Environmental Laws requiring any
material work, repairs, construction, Capital Expenditures or
other remedial work of any nature whatsoever, with respect to any
real property in which the Borrower or any of its Subsidiaries
holds or has held an interest or any past or present operation of
the Borrower or any of its Subsidiaries.
(d) To the best of the Borrower's knowledge,
neither the Borrower nor any of its Subsidiaries has handled any
Hazardous Material, on any property now or previously owned or
leased by the Borrower or any of its Subsidiaries to an extent
that it has, or could reasonably be expected to have, a Material
Adverse Effect, and to the best of the Borrower's knowledge,
except as could not reasonably be expected to have a Material
Adverse Effect:
(i) no PCBs are present at any property now
or previously owned or any premises now or previously leased by
the Borrower or any of its Subsidiaries;
(ii) no asbestos is present at any property
now or previously owned or any premises now or previously leased
by the Borrower or any of its Subsidiaries;
(iii) no underground storage tanks for
Hazardous Materials, active or abandoned, are now or were
previously operated at any property now or previously owned by
the Borrower or any of its Subsidiaries, and, with respect to
premises now or previously leased by the Borrower or any of its
Subsidiaries, no underground storage tanks for Hazardous
Materials, active or abandoned, are now or were previously
operated by the Borrower or any of its Subsidiaries;
(iv) no Hazardous Materials have been
Released, in a reportable quantity, where such a quantity has
been established by statute, ordinance, rule, regulation or
order, at, on or under any property now or previously owned by
the Borrower or any of its Subsidiaries; and
(v) no Hazardous Materials have been
otherwise Released at, on or under any property now or previously
owned or any premises now or previously leased by the Borrower or
any of its Subsidiaries.
(e) Neither the Borrower nor any of its
Subsidiaries has transported or arranged for the transportation
of any material amount of Hazardous Material to any location that
is listed on the National Priorities List ("NPL") under the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), listed for possible inclusion
on the NPL by the Environmental Protection Agency in the
Comprehensive Environmental Response and Liability Information
System, as provided for by 40 C.F.R. ss.300.5 ("CERCLIS"), or on
any similar state or local list or that is the subject of
Federal, state or local enforcement actions or other
investigations that may lead to any material Environmental Claims
against the Borrower or any of its Subsidiaries.
(f) No material amount of Hazardous Material
generated by the Borrower or any of its Subsidiaries has been
recycled, treated, stored, disposed of or Released by the
Borrower or any of its Subsidiaries at any location.
(g) No notification of a Release of any material
amount of a Hazardous Material has been filed by or on behalf of
the Borrower or any of its Subsidiaries and no property now, or,
to the best of the Borrower's knowledge, previously, owned or
leased by the Borrower or any of its Subsidiaries is listed or
proposed for listing on the NPL or on any similar state list of
sites requiring investigation or clean-up.
(h) There are no Liens arising under or pursuant
to any Environmental Laws on any of the property owned or
premises leased by the Borrower or any of its Subsidiaries, and
no government actions have been taken or are in process which
could subject any of such property to such Liens, and neither the
Borrower nor any of its Subsidiaries would be required to place
any notice or restriction relating to the presence of Hazardous
Materials at any property owned by it in any deed to such
property.
(i) Neither the Borrower nor any of its
Subsidiaries has retained or assumed any liabilities (contingent
or otherwise) in respect of any Environmental Claims (i) under
the terms of any contract or agreement or (ii) by operation of
law as a result of merger, consolidation or the sale, exchange or
contribution of assets or stock, other than any liabilities
expressly described in Exhibit M attached hereto.
(j) There have been no environmental
investigations, studies, audits, tests, reviews or other analyses
conducted by or which are in the possession of the Borrower or
any of its Subsidiaries in relation to any property or facility
now or previously owned or leased by the Borrower or any of its
Subsidiaries which have not been disclosed in writing and made
available to the Agent.
5.27 Year 2000. The Borrower has determined that the
computer systems of the Borrower and its Subsidiaries and
equipment containing embedded microchips (including systems and
equipment supplied by others or with which the systems of the
Borrower or its Subsidiaries interface) will function properly in
and following the year 2000, and that no action is required to be
taken by the Borrower or its Subsidiaries to permit such proper
functioning. The cost to the Borrower and its Subsidiaries of the
reasonably foreseeable consequences of year 2000 to the Borrower
and its Subsidiaries (including, without limitation,
reprogramming errors and the failure of others' systems or
equipment) will not result in an Event of Default or a Material
Adverse Effect. The computer and management information systems
of the Borrower and its Subsidiaries are and, with ordinary
course upgrading and maintenance, will continue to be, sufficient
to permit the Borrower and its Subsidiaries to conduct their
business without Material Adverse Effect.
5.28 Solvency. The Borrower has received, or has the
right hereunder to receive, consideration which is the reasonably
equivalent value of the obligations and liabilities that the
Borrower has incurred to the Banks. The Borrower is not insolvent
as defined in Section 101 of Title 11 of the United States Code
or any applicable state insolvency statute, nor, after giving
effect to the consummation of the transactions contemplated
herein and in the Transaction Documents, will the Borrower be
rendered insolvent by the execution and delivery of this
Agreement, the Notes or the Collateral Documents to the Banks.
The Borrower is not engaged, and the Borrower is not about to
engage, in any business or transaction for which the assets
retained by it shall be an unreasonably small capital, taking
into consideration the obligations to the Banks incurred
hereunder. The Borrower does not intend to, nor does the Borrower
believe that it will, incur debts beyond its ability to pay them
as they mature.
5.29 Transaction Documents. The Borrower has provided
to the Agent a complete and correct copy of each of the
Transaction Documents and the other agreements and documents
executed and delivered pursuant thereto. To the best of the
Borrower's knowledge, all of the representations and warranties
of the parties in the Transaction Documents are true and correct
in all material respects as of the date hereof as if given as of
the date hereof, and will be true and correct in all material
respects as of the Closing Date as if given as of such date, and
no default or event of default exists thereunder or will exist
after giving effect to the making of any Loan or the issuance of
any Letter of Credit hereunder. The Transaction Documents have
not been amended or modified, and no provisions thereof have been
waived. The making of any Loan hereunder does not and will not
constitute a default under any of the Transaction Documents.
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BANKS.
The obligations of the Banks to make the initial Loans
on the Closing Date, to issue any Letter of Credit and to make
any subsequent Loan are subject to the fulfillment or waiver in
writing of each of the following conditions precedent. The
Borrower shall deliver to the Agent copies for each Bank of each
document, instrument or other item to be delivered pursuant to
this Section 6.
6.1 Compliance. All of the representations and
warranties of the Borrower, its Subsidiaries and Holdco herein
and in the Collateral Documents shall be true in all material
respects on and as of the Closing Date, the date of issuance of
any Letter of Credit and the date of any subsequent Loan (other
than a Loan resulting from the funding of a Letter of Credit), as
if made on and as of such date, both before and after giving
effect to the making of the proposed Loan or the issuance of the
proposed Letter of Credit, except to the extent that any thereof
expressly relate to an earlier date, in which case such
representations and warranties shall have been true in all
material respects as of such earlier date. The Borrower, its
Subsidiaries and Holdco shall have performed and be in compliance
with all the provisions of this Agreement and each Collateral
Document, and no Possible Default or Event of Default shall have
occurred and be continuing, on and as of the Closing Date and the
date of any subsequent Loan (other than a Loan resulting from the
funding of a Letter of Credit) or the issuance of a Letter of
Credit, before and after giving effect to the making of the
proposed Loan or the issuance of the proposed Letter of Credit.
On the Closing Date and on the date of each subsequent Loan
(other than a Loan resulting from the funding of a Letter of
Credit) and the date of issuance of any Letter of Credit, the
Borrower shall deliver to the Banks a certificate, dated as of
such date, and signed by the President or the chief financial
officer of the Borrower, certifying compliance with the
conditions of this Section 6.1. Each request by the Borrower for
a Loan or a Letter of Credit shall, in and of itself, constitute
a representation and warranty that the Borrower, as of the date
of such Loan or Letter of Credit, is in compliance with this
Section.
6.2 Security Agreements.
(a) The Borrower shall have executed and delivered
to the Agent a Security Agreement in form and substance
satisfactory to the Agent (the "Borrower Security Agreement"),
granting to the Agent, for the benefit of the Banks, a perfected,
first priority security interest in all of the Borrower's right,
title and interest in and to the Management Agreement and in all
distributions and other payments from the Tower Subsidiary and
each other Subsidiary to the Borrower; all actions necessary or
appropriate to perfect such security interest shall have been
taken; and the Borrower Security Agreement, and the security
interests granted pursuant thereto, shall be in full force and
effect.
(b) The Tower Subsidiary shall have executed and
delivered to the Agent a Security Agreement in form and substance
satisfactory to the Agent (the "Tower Subsidiary Security
Agreement"), granting to the Agent, for the benefit of the Banks,
a perfected, first priority security interest in all of the Tower
Subsidiary's right, title and interest in and to the Global Lease
and all other Tenant Leases; all actions necessary or appropriate
to perfect such security interest shall have been taken; and the
Tower Subsidiary Security Agreement, and the security interests
granted pursuant thereto, shall be in full force and effect.
6.3 Pledge Agreements.
(a) Holdco shall have executed and delivered to
the Agent a Pledge Agreement in form and substance satisfactory
to the Agent (the "Holdco Pledge Agreement"), granting to the
Agent, for the benefit of the Banks, a perfected, first priority
security interest in all of the issued and outstanding Membership
Interests of the Borrower; Holdco shall have delivered to the
Agent any certificates evidencing all of such Membership
Interests and duly executed blank powers in respect thereof and
shall have taken all other actions as may be required to effect
the grant and perfection of the Agent's security interest in such
Membership Interests; and the Holdco Pledge Agreement, and the
security interests granted pursuant thereto, shall be in full
force and effect.
(b) The Borrower and BAM shall have executed and
delivered to the Agent a Pledge Agreement in form and substance
satisfactory to the Agent (the "Tower Subsidiary Pledge
Agreement"), granting to the Agent, for the benefit of the Banks,
a perfected, first priority security interest in all of the
issued and outstanding Membership Interests of Tower Subsidiary;
the Borrower and BAM shall have delivered to the Agent any
certificates evidencing all of such Membership Interests and duly
executed blank powers in respect thereof and shall have taken all
actions as may be required to effect the grant and perfection of
the Agent's security interest in such Membership Interests; and
the Tower Subsidiary Pledge Agreement, and the security interests
granted pursuant thereto, shall be in full force and effect.
6.4 Real Property Matters.
(a) Non-Disturbance Agreement. BAM and each of
its affiliates that is a party to the Global Lease shall have
entered into a Subordination, Non-Disturbance and Attornment
Agreement, in form and substance satisfactory to the Agent, with
the Agent, for the benefit of the Banks, with respect to the
Global Lease. At the request of the Agent, the Borrower shall
have used its commercially reasonable efforts to have each other
anchor tenant under a Tenant Lease on any Tower not included in
the Global Lease enter into a Subordination, Non-Disturbance and
Attornment Agreement, in form and substance satisfactory to the
Agent, with the Agent, for the benefit of the Banks, with respect
to such Tenant Lease.
(b) Environmental Studies. The Borrower shall have
delivered to the Agent a summary of the conclusions of each
environmental assessment and environmental transaction screen
available to it relating to any of its or its Subsidiaries'
properties (including those acquired pursuant to the Formation
Agreement), and none of such environmental assessments and
environmental transaction screens shall indicate any material
violation of Environmental Laws or other environmental matters
that individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.
6.5 Financing Statements. Any financing statements
required by the Security Agreements, the Pledge Agreements or any
other Collateral Documents shall have been filed for record with
the appropriate governmental authorities.
6.6 Guaranties.
(a) The Tower Subsidiary shall have executed and
delivered to the Agent, for the benefit of the Banks, a limited
recourse guaranty in form and substance satisfactory to the Agent
(the "Tower Subsidiary Guaranty"), of all of the Borrower's
Obligations hereunder, under the Notes and under each Collateral
Document.
(b) BAM Sub shall have executed and delivered to
the Agent, for the benefit of the Banks, a guaranty of
performance in form and substance satisfactory to the Agent (the
"BAM Sub Guaranty"), of all of the Borrower's Obligations
hereunder, under the Notes and under each Collateral Document,
and the Agent shall be satisfied with the capitalization of BAM
Sub.
6.7 BAM Purchase Agreement. BAM and each of the Banks
shall have entered into an agreement in form and substance
satisfactory to the Banks granting BAM the right (but not the
obligation), upon the occurrence of an Event of Default, to
purchase the Loans (the "BAM Purchase Agreement").
6.8 Consummation of Formation Agreement.
(a) The Formation Agreement (including the
exhibits, schedules and annexes thereto) shall not have been
amended or modified in any respect except as such Agreement may
be modified by the addition of Towers transferred thereunder and
disclosure relating to such additional Towers which disclosure
shall be reasonably satisfactory to the Agent. The transactions
contemplated by the Formation Agreement shall have been
consummated, or shall be consummated simultaneously with the
making of the initial Loans hereunder, without the waiver of any
material term or condition by any party thereto; provided,
however, that a reduction in the number of Towers conveyed to the
Tower Subsidiary pursuant to the Formation Agreement at the
closing under that agreement shall not constitute a waiver of a
material term or condition thereunder unless the number of Towers
so conveyed is less than 1227. Without limiting the foregoing
sentence, the Borrower and the Tower Subsidiary shall have
acquired pursuant to the Formation Agreement substantially all of
the "BAM Contributed Assets" (as that term is defined in the
Formation Agreement), free and clear of all Liens, except
Permitted Liens. The consummation of the transactions
contemplated by the Formation Agreement shall be completed in a
manner satisfactory to the Agent, and the Agent shall have
received conformed copies or photocopies of all conveyance and
other material documents relating thereto. The Borrower shall
cause all opinions and certificates delivered to the Borrower or
the Tower Subsidiary in connection with such closing to be
addressed to the Banks.
(b) The Borrower shall have delivered to the Agent
certified copies of the Formation Agreement and of all other
Transaction Documents and agreements, documents and instruments
entered into in connection therewith. None of the Transaction
Documents shall have been modified from the forms thereof
reviewed and approved by the Agent at the time of execution of
the Formation Agreement in any respect (other than the addition
of Transferring Partnerships or as set forth in subsection (a)
above). The Bidder Services Agreement and the Transitional
Services Agreement, if then applicable, the Management Agreement
and the Operating Agreements shall be in form and substance
reasonably satisfactory to the Agent.
(c) Any party to the Formation Agreement or any
other Transaction Document that has rights pursuant to such
Transaction Document that are similar to those set forth in
Article 8 of the Formation Agreement shall have entered into an
agreement with the Agent, in form and substance satisfactory to
the Agent, pursuant to which such party (i) consents to the
execution, delivery and performance of this Agreement and all of
the Collateral Documents, (ii) agrees that it shall not (A) agree
to or cause the filing of any petition, or the commencement of
any proceeding, described in Section 9.6 by or against Holdco,
the Borrower or the Tower Subsidiary, (B) exercise any right it
may have under Article 8 of the Formation Agreement or any
comparable provision of any other Transaction Document in any
manner that would cause Holdco, the Borrower or the Tower
Subsidiary to be in breach of any representation, covenant or
agreement herein or in any other Collateral Document, or (C)
exercise any right it may have under Article 8 of the Formation
Agreement or any comparable provision of any other Transaction
Document to block or prevent the exercise, after the occurrence
and during the continuance of an Event of Default, by the Agent
or the Banks of any rights they may have hereunder or under the
Collateral Documents in respect of Holdco, the Borrower or the
Tower Subsidiary or any of their respective assets, and (iii)
agrees that, if the Membership Interest originally held by BAM in
the Tower Subsidiary is still pledged to the Agent pursuant to
the Tower Subsidiary Pledge Agreement (or a successor pledge
agreement executed pursuant to Section 8.21) as of the date of
such foreclosure or commencement of such exercise, the rights of
such party under Article 8 of the Formation Agreement and under
any comparable provision of any other Transaction Document shall
cease at such time as the Agent forecloses or otherwise commences
the exercise of remedies under the Tower Subsidiary Pledge
Agreement or such successor pledge agreement.
6.9 No Indebtedness. On the Closing Date, the Agent
shall have received evidence satisfactory to it that (a) the
Borrower has no Indebtedness owing to CCIC, BAM, Holdco or any
other Affiliate of the Borrower or Holdco (other than
indemnification obligations under the Formation Agreement), and
(b) the Tower Subsidiary has no Indebtedness except as expressly
permitted pursuant to Section 8.24.
6.10 Opinion of Counsel. On the Closing Date, the Agent
shall have received the favorable written opinions of (a) counsel
to Holdco, the Borrower and Tower Subsidiary in Texas,
Pennsylvania and New Jersey, (b) counsel to BAM with respect to
any Collateral Documents executed by BAM or any of its Affiliates
and (c) FCC counsel to the Borrower and its Subsidiaries, in each
case dated the Closing Date, addressed to the Banks and in form
and substance satisfactory to the Agent.
6.11 Insurance Certificates. The Borrower shall have
furnished to the Agent on or prior to the Closing Date
certificates of insurance (together with, if requested by the
Agent, copies of all policies referred to in such certificates)
or other satisfactory evidence that the insurance required by
Section 7.3 is in full force and effect.
6.12 Financial Information.
(a) On the Closing Date, the Borrower shall have
delivered to the Agent (i) a pro forma balance sheet as of the
Closing Date and (ii) a statement in form and substance
reasonably satisfactory to the Agent as to the Operating Cash
Flow and Test Operating Cash Flow of the Towers being acquired
pursuant to the Transaction Documents, in each case on a pro
forma basis, giving effect to the closing hereunder and the
closing under the Transaction Documents, for the twelve month
period most recently ended prior to the Closing Date, and as to
such other matters as the Agent may reasonably request.
(b) On, or one Banking Day prior to, the date of
each borrowing hereunder of $5,000,000 or more, the date of each
issuance of a Letter of Credit with a stated amount of $5,000,000
or more, and, to the extent requested by the Agent, the date of
any other borrowing hereunder or issuance of a Letter of Credit,
the Borrower shall have delivered to the Agent a pro forma
compliance certificate in form and substance satisfactory to the
Agent showing the Leverage Ratio and the Borrowing Base as of the
date of such borrowing or issuance of a Letter of Credit and the
Borrower's compliance on a pro forma basis with the financial
covenants set forth in Section 8.
(c) On the Closing Date, the Borrower shall have
delivered to the Agent a solvency certificate in form and
substance satisfactory to the Agent executed by the chief
financial officer of the Borrower.
6.13 Borrowing Request and Statement of Application of
Proceeds. The Borrower shall have delivered to the Agent in
respect of each Loan a borrowing request, in form and substance
satisfactory to the Agent, setting forth the application of the
proceeds of the requested Loan, evidence that such application is
permitted pursuant to Sections 2 and 7.1, the recipient of such
proceeds and wire transfer instructions.
6.14 Organizational Documents. On the Closing Date, the
Borrower shall have delivered to the Agent the following:
(a) certificates of good standing for Holdco and
each of the Borrower and its Subsidiaries from the Secretary of
State (or other appropriate governmental body) of their
respective jurisdictions of organization and from each other
jurisdiction in which any of them is qualified to do business, in
each case dated as of a date as near to the Closing Date as
practicable;
(b) a certificate signed by the Secretary or
Assistant Secretary of the Borrower dated as of the Closing Date
certifying that attached thereto are true and complete copies of
(i) the Operating Agreements and other organization documents of
the Borrower, Holdco, and each of the Borrower's Subsidiaries,
which shall be in form and substance reasonably satisfactory to
the Agent, and (ii) resolutions adopted by the respective Boards
of Representatives of the Borrower, its Subsidiaries and Holdco
authorizing the execution, delivery and performance of this
Agreement and the Collateral Documents and the Obligations to be
performed by such parties hereunder and thereunder;
(c) an incumbency certificate for the Borrower,
each of its Subsidiaries and Holdco; and
(d) such other documents as any Bank may
reasonably request in connection with the proceedings taken by
the Borrower, any of its Subsidiaries or Holdco authorizing this
Agreement, the Collateral Documents and the transactions
contemplated hereby, to the extent it is a party thereto.
6.15 Due Diligence. Prior to the Closing Date, the
Agent and its counsel shall have conducted a due diligence
investigation of Holdco, the Borrower, the Borrower's
Subsidiaries and the transactions and documents contemplated by
the Transaction Documents, and the results of such investigation
shall have been satisfactory to the Agent in all respects.
6.16 Lien Searches, Consents and Releases of Liens. The
Agent shall have received: (a) on the Closing Date, certified
copies of UCC, judgment and tax lien search reports for each
state in which are located towers or other income producing
property of the Borrower or any of its Subsidiaries and in each
county in which are located towers or other income producing
property of the Borrower or any of its Subsidiaries that the
Borrower reasonably estimates will generate in the aggregate at
least 50% of the gross revenues of the Borrower and its
Subsidiaries for the twelve month period following the Closing
Date, listing all effective financing statements and other Liens
on any of the property of the Borrower or such Subsidiary in such
jurisdictions, (b) on the date of any subsequent Loan the
proceeds of which are being used to acquire towers or other
income producing property, certified copies of UCC, judgment and
tax lien search reports for each state in which are located such
towers or other income producing property and in each county in
which are located such towers or other income producing property
that have generated on a pro forma basis in the aggregate at
least 50% of the gross revenues of all such towers and other
income producing property being acquired for the twelve month
period most recently ended prior to date of making such Loan,
listing all effective financing statements and other Liens on any
of the property of the Borrower or such Subsidiary (including
such acquired property) in such jurisdictions, and (c) on the
Closing Date and the date of any subsequent Loan, releases of any
existing Liens encumbering any assets of the Borrower or any of
its Subsidiaries, except for Permitted Liens.
6.17 No Order, Judgment, Decree or Litigation. No
order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain the
Banks from making any Loan. No action, suit, complaint,
proceeding, inquiry or investigation at law or in equity, or by
or before any court or governmental instrumentality or agency,
nor any order, decree or judgment in effect, shall be pending or,
to the best of the Borrower's knowledge, threatened against or
affecting the Borrower, any of its Subsidiaries, any Material
Towers or any of the properties or rights relating to any
Material Towers, and no application, petition, complaint,
proceeding or investigation shall be pending or, to the best of
the Borrower's knowledge, threatened, with respect to any License
or which could restrict the ownership, operation or license
status of any Material Towers, which in any such case could
reasonably be expected to have a Material Adverse Effect.
6.18 No Material Adverse Effect. No Material Adverse
Effect shall have occurred since September 30, 1998, and be
continuing.
6.19 Fee Letter; Fees and Expenses. The Borrower shall
have paid all fees accrued under the Fee Letter through the
Closing Date, and the Borrower shall have paid all other fees,
expenses and other amounts due pursuant hereto and pursuant to
the Fee Letter on or prior to the date of such initial or
subsequent Loan.
6.20 Legal Approval. All legal matters incident to this
Agreement and the consummation of the transactions contemplated
hereby shall be reasonably satisfactory to Dow, Xxxxxx &
Xxxxxxxxx, PLLC, special counsel to the Agent.
6.21 Other Documents. The Agent shall have received all
Collateral Documents duly executed, and each Bank shall have
received such other certificates, opinions, agreements and
documents, in form and substance satisfactory to it, as it may
reasonably request.
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER.
So long as this Agreement remains in effect or any of
the Obligations remains unpaid or to be performed, or any Letter
of Credit remains outstanding, the Borrower shall, and shall
cause its Subsidiaries to, perform and comply with the
affirmative covenants contained in this Section.
7.1 Use of Proceeds. The Borrower shall use the
proceeds of the Loans only as follows: (a) not more than
$180,000,000, as such amount may be reduced pursuant to the
Formation Agreement (or increased with the consent of all of the
Banks), for the Capital Distribution contemplated pursuant to
Section 8.9(a)(iii); (b) for Qualified Acquisitions; (c) for
Capital Expenditures to the extent permitted pursuant to Section
8.7; (d) for the construction of communications tower facilities,
including construction pursuant to the Build to Suit Agreement;
(e) for fees and transaction costs associated with this Agreement
and Qualified Acquisitions; and (f) for general working capital
purposes.
7.2 Continued Existence; Compliance with Law. The
Borrower shall, and shall cause each of its Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and
keep in full force and effect its existence and its material
rights, Licenses, Land Lease Agreements and the Global Lease.
Without limiting the generality of the foregoing, the Borrower
shall, and shall cause each of its Subsidiaries to, obtain and
maintain and preserve in full force and effect any and all
material Licenses and Land Lease Agreements and other material
contracts necessary to maintain, operate and manage the Towers,
not breach or violate the same, and take all actions which may be
required to comply in all material respects with all laws,
statutes, rules, regulations, ordinances, codes, orders and
decrees now in effect or hereafter promulgated by any federal,
state, local or foreign governmental authority. The Borrower
shall obtain, renew and extend all of the foregoing rights,
franchises, permits, Licenses, Land Lease Agreements and the like
which may be necessary for the continuance of the operation,
maintenance and management of the Towers.
7.3 Insurance. The Borrower shall, and shall cause
its Subsidiaries to, keep their insurable properties insured to
the full replacement cost thereof at all times by financially
sound and reputable insurers acceptable to the Agent, and
maintain such other insurance, to such extent and against such
risks, including fire, lightning, vandalism, malicious mischief,
flood (if the Borrower's property is located in an identified
flood hazard area, in which insurance has been made available
pursuant to the National Flood Insurance Act of 1968) and other
risks insured against by extended coverage, as is customary with
companies engaged in the same or similar business similarly
situated. All such insurance shall be in amounts sufficient to
prevent the Borrower or any of its Subsidiaries from becoming a
coinsurer and may contain loss deductible provisions of not to
exceed $150,000. The Borrower shall, and shall cause its
Subsidiaries to, maintain in full force and effect liability
insurance and general accident and public liability insurance
against claims for personal or bodily injury, death or property
damage occurring upon, in, about or in connection with the use or
operation of any property or motor vehicles owned, occupied,
controlled or used by the Borrower or any of its Subsidiaries and
its employees or agents, or arising in any other manner out of
the business conducted by the Borrower and its Subsidiaries. The
Borrower shall maintain business interruption insurance in form
and amount satisfactory to the Agent. All of such insurance
shall be in amounts reasonably satisfactory to the Agent and
shall be obtained and maintained by means of policies with
generally recognized, responsible insurance companies authorized
to do business in such states as may be necessary depending upon
the locations of the Borrower's and its Subsidiaries' assets.
The insurance to be provided may be blanket policies. Each
policy of insurance shall be written so as not to be subject to
cancellation or substantial modification without not less than
thrty days advance written notice to the Agent. The Borrower
shall furnish the Agent annually with certificates or other
evidence satisfactory to the Agent that the insurance required
hereby has been obtained and is in full force and effect and,
prior to the expiration of any such insurance, the Borrower shall
furnish the Agent with evidence satisfactory to the Agent that
such insurance has been renewed or replaced. The Borrower shall,
upon request of the Agent, furnish the Agent such information
about the Borrower's and its Subsidiaries' insurance as the
Agent may from time to time reasonably request.
7.4 Obligations and Taxes. The Borrower shall, and
shall cause its Subsidiaries to, pay or perform all of their
respective material Indebtedness and other material liabilities
and obligations in a timely manner in accordance with normal
business practices and with the terms governing the same. The
Borrower shall, and shall cause its Subsidiaries to, comply
with the terms and covenants of all material agreements and all
material leases of real or personal property, including,
without limitation, the Management Agreement, the Land Lease
Agreements and the Tenant Leases. The Borrower shall take all
commercially reasonable actions as may be necessary to keep all
material patents, copyrights and trademarks from becoming
invalidated or subject to any claim of abandonment for non-use.
The Borrower shall, and shall cause its Subsidiaries to, pay
and discharge promptly all taxes, assessments and governmental
charges or levies imposed upon them or in respect of their
property before the imposition of any penalty, as well as all
lawful claims for labor, materials, supplies or other matters
which, if unpaid, might become a Lien or charge upon such
properties or any part thereof; provided, however, that the
Borrower and its Subsidiaries shall not be required to pay and
discharge or cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as (a) the validity
thereof is being contested diligently and in good faith by
appropriate proceedings and the enforcement thereof is stayed,
pending the outcome of such proceedings, (b) the Borrower or
its Subsidiary has set aside on its books adequate reserves (to
the extent required by GAAP or sound business practice) with
respect thereto, and (c) such contest will not endanger the
Lien of the Agent or the Banks in any of the Borrower's or such
Subsidiary's assets.
7.5 Financial Statements and Reports. The Borrower
shall, and shall cause each of its Subsidiaries to, maintain
true and complete books and records of account in accordance
with GAAP. The Borrower shall furnish to the Agent, for
delivery to the Banks, the following financial statements,
projections and notices at the following times:
(a) As soon as available, but in no event later
than ninety days after the end of each fiscal year of the
Borrower, the Borrower shall furnish (i) audited consolidated
financial statements, including a consolidated balance sheet and
consolidated income and expense statements, of the Borrower and
its Subsidiaries as of the close of such fiscal year reflecting
the results of their operations during such fiscal year, together
with a consolidated statement of cash flows of the Borrower and
its Subsidiaries and additional statements, schedules and
footnotes as are customary in a complete accountant's report;
such financial statements shall set forth, in comparative form,
corresponding figures for the prior year and shall be certified
by nationally recognized independent certified public accountants
selected by the Borrower and acceptable to the Agent and
accompanied by the management letter of such accountants to the
Borrower, and the opinion of such accountants shall be
unqualified and in a form reasonably satisfactory to the Agent;
and (ii) a statement signed by such accountants to the effect
that in connection with their examination of such financial
statements they have reviewed the provisions of this Agreement
and have no knowledge of any event or condition which
constitutes an Event of Default or Possible Default or, if they
have such knowledge, specifying the nature and period of
existence thereof; provided, however, that in issuing such
statement, such independent accountants shall not be required
to go beyond normal auditing procedures conducted in connection
with their opinion referred to above;
(b) As soon as available, but in no event later
than forty-five days after the end of each month during the
Borrowing Base Period, and after the end of each quarter
thereafter, the Borrower shall furnish (i) unaudited
consolidated and consolidating financial statements, including
consolidated and consolidating balance sheets and income and
expense statements, of the Borrower and its Subsidiaries as of
the end of such period reflecting the results of their
operations during such period and for the then elapsed portion
of the fiscal year, which shall be accompanied by consolidated
and consolidating statements of cash flows of the Borrower and
its Subsidiaries for such periods, and (ii) a statement showing
Capital Expenditures (including a comparison to Capital
Expenditures budgeted for such period), capital expenditures
for the construction or improvement of Towers and income taxes
paid, each for such period; all such financial statements shall
set forth, in comparative form, corresponding figures for the
equivalent period of the prior year and a comparison to budget
for the relevant period, shall be in form and detail
satisfactory to the Agent, and shall be certified as to
accuracy and completeness by the chief financial officer of the
Borrower;
(c) As soon as available, but in no event later
than thirty days after the end of each month, the Borrower
shall furnish (i) an unaudited statement of income and expense
for each Tower for such period and for the then elapsed portion
of the fiscal year and (ii) a report showing the aging of
Receivables and the Borrowing Base as of the end of such month;
all such statements and reports shall set forth, in comparative
form, corresponding figures for the equivalent period of the
prior year and a comparison to budget for the relevant period,
shall be in form and detail satisfactory to the Agent, and
shall be certified as to accuracy and completeness by the chief
financial officer of the Borrower;
(d) The financial statements required under (a)
and (b) above, shall be accompanied by a compliance certificate
in the form attached hereto as Exhibit J executed by the
Borrower's chief financial officer setting forth the computations
showing compliance with the financial covenants set forth in
Section 8, and certifying that no Possible Default or Event of
Default has occurred, or if any Event of Default or Possible
Default has occurred, stating the nature thereof and the
actions the Borrower intends to take in connection therewith;
(e) The Borrower shall deliver (i) within
forty-five days after the end of each fiscal year, an annual
operating budget for the then current fiscal year, (ii)
promptly upon preparation thereof, any material revisions of
such annual budget and (iii) after each monthly period in which
there is a material adverse deviation from budget a certificate
of the Borrower's chief financial officer explaining the
deviation and the action, if any, the Borrower has taken or
proposes to take with respect thereto;
(f) The Borrower shall furnish within forty-
five days after the end of each month a report in substantially
the form attached hereto as Exhibit K containing the
information required by such report relating to the Towers
owned, operated or managed by the Borrower or any of its
Subsidiaries.
(g) The Borrower shall furnish (i) upon request,
promptly after the filing thereof with the Internal Revenue
Service, copies of each annual report with respect to each Plan
established or maintained by the Borrower or any member of the
Controlled Group for each plan year, including (A) where
required by law, a statement of assets and liabilities of such
Plan as of the end of such plan year and statements of changes
in fund balance and in financial position, or a statement of
changes in net assets available for plan benefits, for such
plan year, certified by an independent public accountant
satisfactory to the Agent, and (B) if prepared by or available
to the Borrower, an actuarial statement of such Plan applicable
to such plan year, certified by an enrolled actuary of
recognized standing acceptable to the Agent; and (ii) promptly
after receipt thereof, a copy of any notice the Borrower or a
member of the Controlled Group may receive from the Department
of Labor or the Internal Revenue Service with respect to any
Plan (other than notices of general application) which could
result in a material liability to the Borrower or any of its
Subsidiaries; the Borrower will promptly notify the Agent of
any material taxes assessed, proposed to be assessed or which
the Borrower has reason to believe may be assessed against the
Borrower or any member of the Controlled Group by the Internal
Revenue Service with respect to any Plan or Benefit
Arrangement; and
(h) Upon the Agent's written request, such other
information about the financial condition, properties and
operations of the Borrower and its Subsidiaries as any Bank may
from time to time reasonably request.
7.6 Notices. The Borrower shall give the Agent, for
distribution to the Banks, notice (a) promptly after its receipt
of notice thereof, of any action, suit or proceeding by or
against the Borrower or any of its Subsidiaries at law or in
equity, or before any governmental instrumentality or agency, or
of any of the same which may be threatened, which, if adversely
determined, could have a Material Adverse Effect, including,
without limitation, any admonition, censure or adverse citation,
notice or order by the FCC, the FAA, any other Licensing
Authority or any other regulatory agency; (b) within three days
after its receipt of notice thereof, of any action or event
constituting an event of default or violation of any License,
Land Lease Agreement, Transaction Document, the Global Lease, any
material Tenant Lease or any other material contract to which the
Borrower or any of its Subsidiaries is a party or by which the
Borrower or any of its Subsidiaries is bound, or any
investigation, assertion, claim or challenge relating thereto, in
either case which could reasonably be expected to have a Material
Adverse Effect (c) within three days after the occurrence
thereof, of any Possible Default or Event of Default and the
actions the Borrower intends to take in connection therewith; (d)
within five days after its receipt of notice thereof, of any
cancellation of or any material amendment to any of the insurance
policies maintained in accordance with the requirements of this
Agreement, except for cancellations and amendments that occur in
the ordinary course of business; (e) promptly after the
occurrence thereof, of any material strike, labor dispute, slow
down or work stoppage due to a labor disagreement (or any
material development regarding any thereof) affecting the
Borrower or any of its Subsidiaries; (f) promptly after the
occurrence thereof, of any other event, condition, situation,
occurrence or circumstance which could reasonably be expected to
have a Material Adverse Effect; (g) promptly after their receipt
of notice theref, of any material Environmental Claim; and (h)
with respect to all rights, franchises, permits, Licenses and the
like which may be necessary for the continuance of the operation,
maintenance and management of its Towers, (i) any citation or
order relating thereto, (ii) any lapse, suspension, revocation,
rescission, adverse modification or other termination thereof,
(iii) any alleged breach or violation thereof by the Borrower,
any of its Subsidiaries or any other Person, (iv) any proceeding
relating thereto and (v) any refusal of any Person to grant,
renew or extend the same, which in any such case under this
clause (h) could reasonably be expected to have a Material
Adverse Effect.
7.7 Maintenance of Property. The Borrower shall, and
shall cause its Subsidiaries to, at all times maintain and
preserve their Towers, machinery, equipment, motor vehicles,
fixtures and other property in good working order, condition and
repair, normal wear and tear excepted, and in compliance with all
material applicable standards, rules or regulations imposed by
any governmental authority or agency (including, without
limitation, the FCC, the FAA and any other Licensing Authority)
or by any insurance policy held by the Borrower or the
Subsidiaries, except for such property which, in the good faith
judgment of the Borrower, can no longer be profitably employed in
the business of the Borrower or its Subsidiaries.
7.8 Information and Inspection. The Borrower shall
furnish to the Banks from time to time, upon request, full
information pertaining to any covenant, provision or condition
hereof or of any Collateral Document, or to any matter connected
with its, or its Subsidiaries', books, records, operations,
financial condition, properties, activities or business. The
Borrower shall upon request supply the Banks with copies of all
correspondence, documents, reports or information filed with or
received from any Licensing Authority relating to the Borrower,
any of its Subsidiaries, any Tower or any License. At all
reasonable times and upon reasonable notice, the Borrower shall
permit any authorized representatives designated by any Bank to
visit and inspect any of the properties of the Borrower or any of
its Subsidiaries and their books and records, and to take
extracts therefrom and make copies thereof, and to discuss the
Borrower's and its Subsidiaries' affairs, finances and accounts
with the management and independent accountants of the Borrower
and its Subsidiaries. Any such visit and inspection by a Bank or
its representatives shall by coordinated by the Agent.
7.9 Maintenance of Liens. The Borrower shall, and shall
cause its Subsidiaries to, do all things necessary to preserve
and perfect the Liens of the Agent, for the benefit of the Banks,
arising pursuant hereto and pursuant to the Collateral Documents
as first priority Liens, except for Permitted Liens, and to
insure that the Agent, for the benefit of the Banks, has a Lien
on all of the assets of the Borrower and of each of its
Subsidiaries to the extent purported to be provided herein or in
the Collateral Documents.
7.10 Title To Property. The Borrower shall, and shall
cause each of its Subsidiaries to, own and hold title to all of
its assets in its own name and not in the name of any nominee.
7.11 Environmental Compliance and Indemnity.
(a) The Borrower shall, and shall cause its
Subsidiaries to, comply in all material respects with all
Environmental Laws, including, without limitation, all
Environmental Laws in jurisdictions in which the Borrower or any
of its Subsidiaries owns, maintains, operates or manages a Tower,
facility or site, arranges for disposal or treatment of Hazardous
Materials, solid waste or other wastes, accepts for transport any
Hazardous Materials, solid wastes or other wastes or holds any
interest in real property or otherwise. The Borrower shall not,
and shall not permit any of its Subsidiaries to, cause or allow
the Release of Hazardous Materials, solid waste or other wastes
on, under or to any real property in which the Borrower or such
Subsidiary holds any interest or performs any of its operations,
in material violation of any Environmental Law. The Borrower
shall promptly notify the Agent and the Banks (i) of any material
Release of a Hazardous Material on, under or from the real
property in which the Borrower or any of its Subsidiaries holds
or has held an interest, upon the Borrower's learning thereof by
receipt of notice that the Borrower or such Subsidiary is or may
be liable to any Person as a result of such Release or that the
Borrower or such Subsidiary has been identified as potentially
responsible for, or is subject to investigation by any
governmental authority relating to, such Release, and (ii) of the
commencement or threat of any material judicial or administrative
proceeding alleging a violation of any Environmental Laws.
(b) If the Agent at any time has a reasonable
basis to believe that there may be a violation of any
Environmental Law by, or any liability arising thereunder of, the
Borrower or any of its Subsidiaries or related to any real
property owned, leased or operated by the Borrower or any of its
Subsidiaries or real property adjacent to such real property,
which violation or liability could reasonably be expected to have
a Material Adverse Effect, then the Borrower shall, upon request
from the Agent, provide the Agent with such reports,
certificates, engineering or environmental studies or other
written material or data as the Agent may require so as to
satisfy the Agent that the Borrower or such Subsidiary is in
material compliance with all applicable Environmental Laws.
(c) The Borrower shall defend, indemnify and hold
the Agent and the Banks, and their respective officers,
directors, stockholders, employees, agents, affiliates,
successors and assigns harmless from and against all costs
(including clean up costs), expenses, fines, claims, demands,
damages, penalties and liabilities of every kind or nature
whatsoever (including reasonable attorneys', consultants' and
experts' fees) arising out of, resulting from or relating to,
directly or indirectly, (i) the noncompliance of the Borrower or
any of its Subsidiaries or any property at any time owned or
leased by the Borrower or any of its Subsidiaries with any
Environmental Law, or (ii) any investigatory or remedial action
involving the Borrower, any of its Subsidiaries or any property
at any time owned or leased by the Borrower or any of its
Subsidiaries and required by Environmental Laws or by order of
any governmental authority having jurisdiction under any
Environmental Laws, or (iii) any injury to any Person whatsoever
or damage to any property arising out of, in connection with or
in any way relating to the breach of any of the environmental
warranties or covenants contained in this Agreement or any
Collateral Document or any facts or circumstances that cause any
of the environmental representations or warranties contained in
this Agreement or any Collateral Document to cease to be true, or
(iv) the Release of any Hazardous Material on or affecting any
property owned or leased by the Borrower or any of its
Subsidiaries, or (v) the presence of any asbestos-containing
material or underground storage tanks, whether in use or closed,
under or on any property owned or leased by the Borrower or any
of its Subsidiaries.
7.12 Rate Hedging Obligations. The Borrower shall, at
all times from and after the date that is 120 days after the
Closing Date, maintain in full force and effect, for an average
term of two years, agreements in form and substance reasonably
satisfactory to the Agent regarding Rate Hedging Obligations so
that the sum (without duplication) of (a) the notional amount
subject to such agreements and (b) the aggregate principal amount
of all Total Debt which bears interest at a fixed interest rate
equals at all times at least 50% of the aggregate principal
amount of all Total Debt of the Borrower and its Subsidiaries.
7.13 Maintenance of Separate Identity. The Borrower
shall (a) not fail to correct any known misunderstanding
regarding its existence separate and distinct from Holdco, (b)
maintain its accounts, books and records separate from those of
Holdco, (c) not commingle its funds or assets with those of
Holdco and shall not permit Holdco to have direct access to its
cash, (d) hold all of its assets in its own name and shall not
permit Holdco to acquire or dispose of any assets on its behalf,
(e) not conduct business in the name of Holdco, (f) not assume or
guaranty or otherwise become obligated for the debts of Holdco or
hold out its credit as being available to satisfy the obligations
of Holdco, and (g) allocate fairly and reasonably any overhead
for office space shared with Holdco and shall use separate
stationery, invoices and checks from those used by Holdco.
SECTION 8. NEGATIVE COVENANTS OF THE BORROWER.
So long as this Agreement remains in effect or any of
the Obligations remains unpaid or to be performed, or any Letter
of Credit remains outstanding, the Borrower shall not, and shall
not permit any of its Subsidiaries directly or indirectly to,
take any of the actions set out in this Section 8 nor permit any
of the conditions set out herein to occur.
8.1 Indebtedness. The Borrower shall not, and shall not
permit any of its Subsidiaries to, incur, create, assume or
permit to exist any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness permitted under Section 8.4, 8.5
or 8.6;
(c) existing Indebtedness set forth on Exhibit F;
(d) unsecured trade accounts payable and other
unsecured current Indebtedness incurred in the ordinary course of
business and not more than one hundred twenty days past due (but
excluding any Indebtedness for borrowed money);
(e) Indebtedness for taxes, assessments,
governmental charges, liens or similar claims to the extent that
payment thereof shall not be required to be made by the
provisions of Section 7.4;
(f) Indebtedness arising under Rate Hedging
Obligations required pursuant to Section 7.12;
(g) the Build to Suit Obligations; and
(h) other unsecured Indebtedness of the Borrower
in an aggregate principal amount not to exceed $10,000,000 at any
one time outstanding.
8.2 Liens.
(a) The Borrower shall not, and shall not permit
any of its Subsidiaries to, grant, incur, create, assume or
permit to exist any Lien of any nature whatsoever, including
those arising in connection with conditional sales or other title
retention agreements, on any property or assets now owned or
hereafter acquired by the Borrower or any of its Subsidiaries,
other than Permitted Liens.
(b) The Borrower shall not, and shall not permit
any of its Subsidiaries to, enter into or permit to exist any
arrangement or agreement, other than pursuant to this Agreement
or any Collateral Document, which directly or indirectly
prohibits the Borrower or any of its Subsidiaries from creating
or incurring any Lien on any of its assets, other than (a) leases
and agreements regarding purchase money Indebtedness permitted
pursuant to Section 8.4 (so long as such prohibition only relates
to the asset which is subject to such lease or which secures such
Indebtedness), (b) standard provisions in agreements which
prohibit the assignment of such agreements and (c) restrictions
on the creation of Liens contained in the Formation Agreement as
in effect as of the date hereof.
8.3 Guaranties. The Borrower shall not, and shall not
permit any of its Subsidiaries to, become a Guarantor for any
Person, except with respect to endorsements of negotiable
instruments for collection in the ordinary course of business.
8.4 Rental and Conditional Sale Obligations. The
Borrower shall not incur, create, assume or permit to exist, with
respect to any personal property, any conditional sale
obligation, any purchase money obligation, any rental obligation,
any purchase money security interest or any other arrangement for
the use of personal property of any other Person, pursuant to
which the Borrower is the buyer, borrower or lessee, other than
an arrangement classifiable as a capital lease which is permitted
in Section 8.6, if the aggregate amount payable pursuant to such
arrangements (other than any such arrangements incurred in
connection with a Qualified Acquisition) would exceed $1,000,000
in any fiscal year. The Borrower shall not permit any of its
Subsidiaries to incur, create, assume or permit to exist, with
respect to any personal property, any conditional sale
obligation, any purchase money obligation, any rental obligation,
any purchase money security interest or any other arrangement for
the use of personal property of any other Person, pursuant to
which such Subsidiary is the buyer, borrower or lessee.
8.5 Real Property Interests. The Borrower shall not,
and shall not permit any of its Subsidiaries to, enter into,
assume or permit to exist any lease or rental obligation for real
property, other than the Land Lease Agreements, if the aggregate
amount payable in respect thereof by the Borrower and its
Subsidiaries (other than any such arrangements incurred in
connection with a Qualified Acquisition) would exceed $1,500,000
in the aggregate in any fiscal year.
8.6 Capitalized Lease Obligations. The Borrower shall
not incur, create, assume or permit to exist any Capitalized
Lease Obligations under any lease of personal or real property if
the aggregate amount payable in respect of all such Capitalized
Lease Obligations (other than Capitalized Lease Obligations
incurred in connection with a Qualified Acquisition) would exceed
$750,000 in the aggregate in any fiscal year. The Borrower shall
not permit any of its Subsidiaries to incur, create, assume or
permit to exist any Capitalized Lease Obligations under any lease
of personal or real property.
8.7 Capital Expenditures. Except for (a) any payments
in respect of Capitalized Lease Obligations, and (b) expenditures
of proceeds of casualty insurance policies reasonably and
promptly applied to replace insured assets, the Borrower and its
Subsidiaries shall not make Capital Expenditures which exceed the
sum of $10,000,000 in the aggregate in calendar year 1999 or
which exceed the sum of $5,000,000 in the aggregate in any fiscal
year thereafter (the amount permitted in any year pursuant to
this sentence being referred to as the "Base Amount" for such
year). If the Base Amount for any year exceeds the aggregate
amount of Capital Expenditures actually made by the Borrower and
its Subsidiaries in such year (such excess being referred to as
the "Excess Amount"), then the Borrower and its Subsidiaries may
make Capital Expenditures in the immediately succeeding year (but
not in any year thereafter) in excess of the Base Amount for such
succeeding year in an amount not to exceed the Excess Amount for
the prior year.
8.8 Notes, Accounts Receivable and Claims. The
Borrower shall not, and shall not permit any of its Subsidiaries
to, (a) sell, discount or otherwise dispose of any note, account
receivable or other right to receive payment, with or without
recourse, except for collection in the ordinary course of
business; or (b) fail to timely assert any claim, cause of action
or contract right which its possesses against any third party nor
agree to settle or compromise any such claim, cause of action or
contract right except in any case in the exercise of good
business judgment and except for settlements or compromises made
in the reasonable exercise of business judgment in the ordinary
course of business.
8.9 Capital Distributions.
(a) The Borrower shall not, and shall not permit
any of its Subsidiaries to, make, or declare or incur any
liability to make, any Capital Distribution, except that:
(i) any Subsidiary of the Borrower may make
Capital Distributions to the Borrower or to a wholly owned
Subsidiary of the Borrower;
(ii) the Borrower may make Capital
Distributions to Holdco (A) solely in order to permit Holdco to
pay its actual out-of-pocket costs in respect of directors and
officers liability insurance, costs of filings in Delaware and
other jurisdictions where Holdco may be qualified or registered
to conduct business and customary record keeping and financial
reporting, so long as the aggregate amount of such Capital
Distributions does not exceed $100,000 in any year, and (B)
solely in order to permit Holdco to pay that portion of the
federal, state and local income tax liability (exclusive of
penalties and interest) of Holdco which arises from the
allocation to Holdco for income tax purposes of taxable income or
taxable gain of the Borrower (not to exceed the actual federal,
state and local income tax liability of Holdco), so long as in
each case: (I) prior to making any such distribution, the
Borrower shall have demonstrated to the satisfaction of the Agent
that the Borrower will be in compliance with all of the covenants
contained herein after giving effect to such distribution; (II)
no Possible Default or Event of Default exists at the time of
making such distribution or would exist after giving effect
thereto; (III) prior to making any such distribution, the
Borrower shall have delivered to the Agent a certificate of its
chief financial officer in form and substance satisfactory to the
Agent which shall contain calculations demonstrating on a pro
forma basis the Borrower's compliance with the financial
covenants set forth in this Section 8 after giving effect to such
distribution; (IV) such distributions shall not be made more
frequently than four times per year; and (V) with respect to
distributions pursuant to clause (B) above, prior to such
distribution, the chief financial officer of the Borrower shall
have executed and delivered to the Agent a certificate in form
and substance satisfactory to the Agent stating the amount of
each tax liability for which a distribution is to be made and
stating in reasonable detail the basis for and method of
calculating such tax liability; and
(iii) the Borrower may make a Capital
Distribution to Holdco on the Closing Date in an amount not to
exceed $380,000,000 in connection with the consummation of the
transactions contemplated by the Formation Agreement, of which no
more than $180,000,000 may be borrowed pursuant hereto (without
the consent of all of the Banks) and the balance shall be paid
from the proceeds of a cash distribution made to the Borrower by
the Tower Subsidiary from the proceeds of the Bidder Contributed
Cash (as that term is defined in the Formation Agreement). The
foregoing amounts shall be reduced pursuant to the provisions of
Section 3.8 and 3.9 of the Formation Agreement, to the extent
applicable.
(b) The Borrower shall not permit any of its
Subsidiaries to agree to or to be subject to any restriction on
its ability to make Capital Distributions or loans or loan
repayments or other asset transfers to its members, partners,
stockholders or other equity holders other than (i) restrictions
imposed by applicable law, (ii) the restrictions set forth in
this Section, (iii) restrictions set forth in the Operating
Agreement of such Subsidiary as in effect as of the date hereof
or as amended pursuant to Section 8.13 and (iv) customary
non-assignment provisions contained in leases.
8.10 Disposal of Property; Mergers; Acquisitions;
Reorganizations.
(a) Except as expressly permitted pursuant to
Section 8.10(b), Section 8.10(c) or Section 8.10(d), the Borrower
shall not, and shall not permit any of its Subsidiaries to, (i)
dissolve or liquidate; (ii) sell, lease, transfer or otherwise
dispose of any material portion of its properties or assets to
any Person; (iii) be a party to any consolidation, merger,
recapitalization or other form of reorganization; (iv) make any
acquisition of all or substantially all the assets of any Person,
or of a business division or line of business of any Person, or
of any other assets constituting a going business; (v) create,
acquire or hold any Subsidiary other than the Tower Subsidiary;
or (vi) be or become a party to any joint venture or other
partnership.
(b) The Borrower may accept the contribution of
assets contemplated by the Formation Agreement and may also make
acquisitions of communications tower facilities, site management
and site acquisition companies and related communications and
information transmission businesses, either by the acquisition of
assets or the acquisition of all of the outstanding equity
interests of entities engaged in such businesses, subject to the
satisfaction of the following conditions (the acquisition
contemplated by the Formation Agreement and any such other
acquisition, or series of related acquisitions, that satisfies
the following conditions being referred to hereinafter as a
"Qualified Acquisition"):
(i) the Borrower shall have given to the
Agent written notice of such acquisition at least fifteen days
prior to executing any binding commitment with respect thereto;
(ii) the Borrower shall have demonstrated to
the satisfaction of the Agent that the Borrower will be in
compliance with all of the covenants contained herein after
giving effect to such acquisition and that no Event of Default or
Possible Default then exists or would exist after giving effect
to such acquisition;
(iii) the Borrower shall have delivered to
the Agent within twenty days prior to the consummation of such
acquisition a report signed by the Borrower's chief financial
officer in form and substance satisfactory to the Agent which
shall contain calculations demonstrating on a pro forma basis the
Borrower's compliance with the financial covenants set forth in
this Section 8 after giving effect to such acquisition and, if
the borrowing hereunder in connection with such acquisition is in
an amount in excess of $5,000,000, projections for the Borrower
for a five year period after the closing of such acquisition
giving effect to such acquisition and including a statement of
sources and uses of funds for such acquisition showing, among
other things, the source of financing for such acquisition;
(iv) after giving effect to such acquisition,
the Borrower or one of its Subsidiaries shall have (A) marketable
fee simple title or an assignable (subject to receipt of any
necessary consents) and insurable leasehold interest in each
property on which an acquired Tower is located, and (B) in the
case of acquired Towers, either (I) written agreements (including
by assignment) for licensing of space on such Tower with
licensees that generate at least 75% of the revenues then
attributable to such Tower or (II) in its good faith judgment, a
strong probability of retaining licensees that generate 90% of
the revenues then attributable to such Tower, in each case, with
respect to such license agreements, on substantially the same
terms and conditions as existed immediately prior to such
acquisition;
(v) the Agent shall have received from the
Borrower an engineering report from an engineer, satisfactory to
the Agent (which engineer may be an employee of the Borrower or
one of its Subsidiaries or Affiliates), acceptable in form and
substance to the Agent, with respect to the construction,
engineering and maintenance of the Towers to be constructed,
acquired or managed and their compliance with applicable laws,
rules and regulations;
(vi) the agreement governing such acquisition
and all related documents and instruments shall be reasonably
satisfactory to the Agent in form and substance;
(vii) the Purchase Price of such acquisition
shall be payable in cash at the closing of such acquisition;
(viii) other than in the case of acquisitions
from BAM or any of its Affiliates or other acquisitions of Towers
that will be covered by the Global Lease, the Borrower and its
Subsidiaries shall have taken any actions as may be necessary or
reasonably requested by the Agent to grant to the Agent, for the
benefit of the Banks, first priority, perfected Liens in all
assets, real and personal, tangible and intangible, acquired or
constructed by the Borrower or any of its Subsidiaries in such
acquisition or construction pursuant to the Collateral Documents
in form and substance satisfactory to the Agent, subject to no
prior Liens except Permitted Liens; if any such Tower
subsequently becomes subject to the Global Lease, such Liens
granted to the Agent will be released;
(ix) if the Borrower or any of its
Subsidiaries acquires a Subsidiary or creates a Subsidiary
pursuant to or in connection with such acquisition,
(A) the Borrower shall, or shall cause
its Subsidiary which owns such newly acquired or created
Subsidiary to, execute a Pledge Agreement, in substantially the
form of the Pledge Agreements or otherwise in form and substance
satisfactory to the Required Banks, pursuant to which all of the
stock or other securities or equity interests of such acquired or
created Subsidiary are pledged to the Agent, for the benefit of
the Banks, as security for the Obligations of the Borrower
hereunder and under the Notes and the Collateral Documents; and
(B) such acquired or created Subsidiary
shall execute and deliver to the Agent, for the benefit of the
Banks, a guaranty, and shall grant to the Agent, for the benefit
of the Banks, a first priority, perfected lien or security
interest in all of its assets, real and personal, tangible and
intangible, subject to no prior liens or security interests
except for Permitted Liens, pursuant to Collateral Documents in
form and substance satisfactory to the Required Banks, and shall
take all actions required pursuant thereto;
(x) the Borrower shall have delivered to the
Agent evidence reasonably satisfactory to the Agent to the effect
that all material approvals, consents or authorizations required
in connection with such acquisition from any Licensing Authority
or other governmental authority shall have been obtained, and
such opinions as the Agent may reasonably request as to the liens
and security interests granted to the Agent, for the benefit of
the Banks, as required pursuant to this Section, and as to any
required regulatory approvals for such acquisition;
(xi) the Agent shall have received copies of
all material documents relating to such acquisition, and the
Borrower shall have caused all opinions and certificates of the
seller of such Towers delivered in connection with such closing
to be addressed to the Banks; and
(xii) if such acquisition involves an
aggregate Purchase Price of at least $5,000,000, then, to the
extent requested by the Required Banks, the Banks shall have
received a statement from KPMG Peat Marwick (or another
nationally recognized firm of independent certified public
accountants selected by the Borrower and acceptable to the Agent)
certifying as to the operating cash flow of the acquired Towers
or, in the case of a management agreement, such management
agreement, for the twelve month period most recently ended prior
to the closing of such acquisition and as to such other matters
as the Agent may reasonably request.
(c) Subject to compliance with Section
2.5(b)(iii), the Borrower may, and may permit any of its
Subsidiaries to, dispose of Towers subject to the following
conditions:
(i) no Event of Default or Possible Default
shall then exist or shall exist after giving effect to such
disposition;
(ii) the Borrower shall have delivered to the
Agent a certificate of its chief financial officer in form and
substance satisfactory to the Agent which shall contain
calculations demonstrating on a pro forma basis the Borrower's
compliance with the financial covenants set forth in this Section
8 after giving effect to such disposition;
(iii) the Operating Cash Flow attributable to
such Towers in the four quarter period most recently ended,
together with the Operating Cash Flow attributable to all Towers
previously disposed of in such four quarter period, shall not
exceed 5% of total Operating Cash Flow for such four quarter
period; and
(iv) no Towers may be disposed of at any time
if the Operating Cash Flow attributable to such Towers, together
with the Operating Cash Flow attributable to all Towers
previously disposed of since the Closing Date exceeds 15% of
total Operating Cash Flow for the four quarter period most
recently ended.
(d) The Borrower may form one or more Subsidiaries
which shall be direct, wholly owned Subsidiaries of the Borrower,
and cause the Tower Subsidiary to transfer to such newly created
Subsidiaries assets of the Tower Subsidiary acquired by it
pursuant to the Formation Agreement at the closing thereunder,
subject to the following conditions:
(i) the Borrower shall have given to the
Agent thirty days prior written notice of each such transfer;
(ii) the organizational documents of each
such Subsidiary shall be comparable in all material respects to
the organizational documents of the Tower Subsidiary or shall be
reasonably satisfactory to the Agent in form and substance;
(iii) no Event of Default or Possible Default
then exists or would exist after giving effect to any such
transfer;
(iv) the Borrower shall have executed and
delivered to the Agent a pledge agreement, in substantially the
form of the Tower Subsidiary Pledge Agreement or otherwise in
form and substance reasonably satisfactory to the Required Banks,
pursuant to which all of the stock or other securities or equity
interests of each such Subsidiary are pledged to the Agent, for
the benefit of the Banks, as security for the Obligations of the
Borrower hereunder and under the Notes and the Collateral
Documents;
(v) each such Subsidiary shall have executed
and delivered to the Agent, for the benefit of the Banks, a
guaranty in substantially the form of the Tower Subsidiary
Guaranty, or otherwise in form and substance reasonably
satisfactory to the Required Banks, pursuant to which such
Subsidiary shall guarantee the Obligations of the Borrower
hereunder and under the Notes and the Collateral Documents;
(vi) each such Subsidiary shall have executed
and delivered to the Agent, for the benefit of the Banks, a
security agreement in substantially the form of the Tower
Subsidiary Security Agreement, or otherwise in form and substance
reasonably satisfactory to the Required Banks, pursuant to which
such Subsidiary shall grant to the Agent for the benefit of the
Banks a first priority, perfected lien or security interest in
the collateral described therein and shall have taken all actions
required pursuant thereto;
(vii) each such Subsidiary shall have become
a party to the Global Lease, the Management Agreement and such of
the other Transaction Documents as may be appropriate pursuant to
amendments or joinder agreements in form and substance
satisfactory to the Required Banks; and
(viii) the Borrower shall have entered into
an amendment to this Agreement to reflect the creation of such
Subsidiaries, the execution and delivery of the foregoing
Collateral Documents and such other matters as the Required Banks
may reasonably request in connection therewith.
8.11 Construction of Towers. The Borrower shall not,
and shall not permit any of its Subsidiaries to, construct any
Tower or related group of Towers pursuant to a request from any
Person for an aggregate construction cost, as reasonably
estimated by the Borrower, of more than $2,500,000 except in
accordance with the following provisions:
(a) the Borrower shall have provided to the Agent
within the prior three month period a certificate describing such
proposed construction and any other projected construction during
the three month period following the delivery of such
certificate;
(b) such certificate shall have demonstrated to
the satisfaction of the Agent that the Borrower will be in
compliance with all of the covenants contained herein after
giving effect to such construction and that no Event of Default
or Possible Default then exists or would exist after giving
effect to such construction;
(c) the Borrower shall have delivered to the Agent
prior to the commencement of such construction a report signed by
the Borrower's chief financial officer in form and substance
satisfactory to the Agent which shall contain calculations
demonstrating on a pro forma basis the Borrower's compliance with
the financial covenants set forth in this Section 8 after giving
effect to such construction and, if the borrowing hereunder in
connection with such construction is in an amount in excess of
$5,000,000, projections for the Borrower for a five year period
after the completion of such construction giving effect to such
construction and including a statement of sources and uses of
funds for such construction showing, among other things, the
source of financing for such construction;
(d) after giving effect to such construction, the
Borrower or one of its Subsidiaries shall have marketable fee
simple title or an assignable (subject to receipt of any
necessary consents) and insurable leasehold interest in each
property on which a constructed Tower is located and either such
Tower shall have been added to the Global Lease or the Borrower
or its Subsidiary shall have entered into a standard Tenant Lease
in form and substance reasonably satisfactory to the Agent with
an anchor tenant;
(e) except in connection with Towers constructed
pursuant to the Build to Suit Agreement or other constructions of
Towers that will be covered by the Global Lease, the Borrower and
its Subsidiaries shall take any actions as may be necessary or
reasonably requested by the Agent to grant to the Agent, for the
benefit of the Banks, first priority, perfected Liens in all
assets, real and personal, tangible and intangible, relating to
the Tower constructed by the Borrower or any of its Subsidiaries
pursuant to the Collateral Documents in form and substance
satisfactory to the Agent, subject to no prior Liens except
Permitted Liens; if any such Tower subsequently becomes subject
to the Global Lease, such Liens granted to the Agent will be
released;
(f) neither the Borrower nor any of its
Subsidiaries shall acquire or create a Subsidiary in connection
with such construction;
(g) the Borrower shall deliver to the Agent
evidence reasonably satisfactory to the Agent to the effect that
all material approvals, consents or authorizations required in
connection with such construction from any Licensing Authority or
other governmental authority shall have been obtained, and such
opinions as the Agent may reasonably request as to the liens and
security interests granted to the Agent, for the benefit of the
Banks, as required pursuant to this Section (if such liens and
security interests have been granted), and as to any required
regulatory approvals for such construction.
8.12 Investments. The Borrower shall not, and shall not
permit any of its Subsidiaries to, purchase or otherwise acquire,
hold or invest in any stock or other securities or evidences of
indebtedness of, or any interest or investment in, or make or
permit to exist any loans or advances to, any other Person,
except:
(a) direct obligations of the United States
Government maturing within one year;
(b) certificates of deposit of a member bank of
the Federal Reserve System having capital, surplus and undivided
profits in excess of $100,000,000;
(c) any investment in commercial paper which at
the time of such investment is assigned the highest quality
rating in accordance with the rating systems employed by either
Xxxxx'x Investors Service, Inc. or Standard & Poor's Corporation;
(d) investments in the Tower Subsidiary or in a
Subsidiary created or acquired in connection with a Qualified
Acquisition to the extent permitted pursuant to Section 8.10(b)
or in a Subsidiary created pursuant to Section 8.10(d); and
(e) loans and advances to employees in an
aggregate amount for the Borrower and its Subsidiaries not to
exceed at any time $250,000.
8.13 Amendment of Governing Documents. The Borrower
shall not, and shall not permit any of its Subsidiaries or any
other Person to, amend, modify or supplement its Operating
Agreement or any other organizational or governing document of
the Borrower or any of its Subsidiaries, unless required by law,
in any manner adverse, as reasonably determined by the Agent, to
the Borrower, such Subsidiary or the Banks.
8.14 Financial Covenants.
(a) Leverage Ratio. The Borrower shall not permit
the Leverage Ratio as of any date in any period listed in Column
A below to be greater than the ratio set forth in Column B below
opposite such period:
Column A Column B
Period: Permitted Ratio:
Closing Date to December 30, 8.25:1.0
1999:
December 31, 1999, to 7.25:1.0
December 30, 2000:
December 31, 2000, to 7.00:1.0
September 30, 2001:
October 1, 2001, to March 6.50:1.0
30, 2002:
March 31, 2002, to December 5.00:1.0
31, 2002:
January 1, 2003, and 4.00:1.0.
thereafter:
(b) Fixed Charge Coverage Ratio. The Borrower
shall not permit the Fixed Charge Coverage Ratio as of any date
to be less than 1.1 to 1.0.
(c) Projected Debt Service Coverage Ratio. The
Borrower shall not permit the ratio of Test Operating Cash Flow
as of the end of any four quarter period to Projected Debt
Service as of such date to be less than 1.15 to 1.0.
(d) Operating Cash Flow to Interest Expense Ratio.
The Borrower shall not permit the ratio of Operating Cash Flow
for any period beginning on the Closing Date and ending on the
last day of any fiscal quarter ending on or prior to December 31,
1999, to Interest Expense for such period to be less than 1.5 to
1.0; the Borrower shall not permit the ratio of Operating Cash
Flow for the four quarter period ending on March 31, 2000, to
Interest Expense for such four quarter period to be less than
1.75 to 1.0; and the Borrower shall not permit the ratio of
Operating Cash Flow for any four quarter period ending after
March 31, 2000, to Interest Expense for such four quarter period
to be less than 2.0 to 1.0.
(e) Right to Cure. If, as of the end of any
quarter ending prior to the second anniversary of the Closing
Date, Operating Cash Flow or Test Operating Cash Flow is
insufficient to satisfy any of the financial covenants set forth
in this Section 8.14, then, notwithstanding the provisions of
Section 9.2 below, no Event of Default will be deemed to have
occurred if the Borrower receives from Holdco, within five days
of the receipt by the Agent pursuant to Section 7.5(b) of the
financial statements for such quarter, a capital contribution in
an amount which, had it been applied as a prepayment of the Loans
prior to the end of such quarter, would have been sufficient to
satisfy such financial covenants. After the second anniversary of
the Closing Date, such right to cure shall require the consent of
the Required Banks.
8.15 Management Agreements and Fees. The Borrower shall
not, and shall not permit any of its Subsidiaries to, make or
enter into, or pay any management fees pursuant to, any
management or service agreement whereby management, supervision
or control of its business, or any significant aspect thereof,
shall be delegated to or placed in any Person other than an
employee of the Borrower or a Subsidiary of the Borrower, other
than the Management Agreement, the Transition Services Agreement,
the Bidder Services Agreement and the Xxxx Management Agreement.
8.16 Fiscal Year. The Borrower shall not, and shall not
permit any of its Subsidiaries to, change its fiscal year, which
shall be the calendar year.
8.17 ERISA. Neither the Borrower nor any member of the
Controlled Group shall fail to make any contributions which are
required by applicable law or pursuant to the terms of any Plan
or any Benefit Arrangement. Neither the Borrower nor any member
of the Controlled Group shall contribute to or agree to
contribute to any Plan which is (a) subject to the minimum
funding requirements under ERISA Section 302 or Code Section 412;
(b) a multiemployer plan (as defined in ERISA Section
4001(a)(3)); (c) a defined benefit plan (as defined under ERISA
Section 3(35) or Code Section 414(j)); (d) a multiple employer
plan (as defined in ERISA Section 4063); or (e) a multiple
employer welfare arrangement (as defined in ERISA Section 3(40)).
8.18 Affiliates. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any transaction,
agreement or arrangement, other than as expressly provided in the
Transaction Documents as in effect on the Closing Date, with
Holdco or any other Affiliate of the Borrower (other than a
Subsidiary of the Borrower), or pay any compensation or salary to
any such Person unless such transaction, agreement or arrangement
is in the ordinary course of and pursuant to the reasonable
requirements of the business of the Borrower or any of its
Subsidiaries and the terms of such transaction or agreement are
not substantially less favorable to the Borrower or such
Subsidiary than could be obtained in an arms-length transaction
with an unaffiliated third party or unless the amount paid to
such person is not substantially in excess of the fair value of
the services rendered by such person.
8.19 Change of Name or Structure. The Borrower shall
not, and shall not permit any of its Subsidiaries to, change its
name or organizational structure without thirty days prior
written notice to the Agent.
8.20 Amendments, Waivers or Terminations. The Borrower
shall not, and shall not permit any of its Subsidiaries to, (a)
amend, alter or modify in any material respect, or terminate or
consent to or suffer any material amendment, alteration,
modification or termination, of the Global Lease, the Management
Agreement, the Build to Suit Agreement or any other Transaction
Document, or (b) amend, alter, modify, or terminate or consent to
or suffer any amendment, alteration, modification or termination,
of any License, any Land Lease Agreement, any Tenant Lease (other
than the Global Lease) or any other material contract (or waive a
material right thereunder) except for any amendments,
alterations, modifications or terminations which could not
reasonably be expected to have a Material Adverse Effect.
8.21 Issuance or Transfer of Membership Interests. The
Borrower shall not, and shall not permit any of its Subsidiaries
to, sell or issue any Membership Interests or other equity
interests of the Borrower or such Subsidiary or any warrants,
options or other securities convertible into or exercisable for
any Membership Interests or other equity interests of the
Borrower or such Subsidiary, and the Borrower shall not, and
shall not permit any of its Subsidiaries to, permit the transfer
of any of its Membership Interests or other equity interests or
any warrants, options or other securities convertible into or
exercisable for any of its Membership Interests or other equity
interests; provided, however, that (a) the Borrower may permit
the Tower Subsidiary to permit the transfer of the .001%
Membership Interest held by BAM as of the date hereof to be
transferred to a Person that as of the date hereof is a member of
Holdco or to any Subsidiary of Xxxx Atlantic Corporation so long
as (i) the Borrower gives thirty days prior notice to the Agent
of such transfer, and (ii) the transferee member enters into a
pledge agreement in form and substance substantially identical to
the Tower Subsidiary Pledge Agreement pursuant to which its
Membership Interest in the Tower Subsidiary is pledged to the
Agent, for the benefit of the Banks, as security for the
obligations of the Borrower hereunder and under the Notes and the
other Collateral Documents, and (b) the Borrower may permit the
transfer of any of its Membership Interests to a Person that as
of the date hereof is a member of Holdco so long as (i) the
Borrower gives thirty days prior notice to the Agent of such
transfer, and (ii) the transferee member enters into a pledge
agreement in form and substance substantially identical to the
Holdco Pledge Agreement pursuant to which its Membership Interest
in the Borrower is pledged to the Agent, for the benefit of the
Banks, as security for the obligations of the Borrower hereunder
and under the Notes and the other Collateral Documents.
8.22 Types of Business. The Borrower shall not, and
shall not permit any of its Subsidiaries to, engage in any
business other than (a) constructing, owning, operating, leasing,
managing and acquiring Towers and leasing space on such Towers to
tenants and (b) other activities related thereto.
8.23 Regulation U. The Borrower shall not, directly or
indirectly, (a) apply any part of the proceeds of the Loans to
the purchasing or carrying of any "margin stock" within the
meaning of Regulations T, U or X of the Federal Reserve Board, or
any regulations, interpretations or rulings thereunder, (b)
extend credit to others for the purpose of purchasing or carrying
any such margin stock, or (c) retire Indebtedness which was
incurred to purchase or carry any such margin stock.
8.24 Tower Subsidiary and Other Subsidiaries. The
Borrower shall not permit the Tower Subsidiary or any Subsidiary
created pursuant to Section 8.10 to (a) incur, create, assume or
permit to exist any Indebtedness other than pursuant to the Land
Lease Agreements, the Tenant Leases, a Guaranty, the Build to
Suit Agreement and the other Collateral Documents, (b) incur,
create, assume or permit to exist any Lien of any nature
whatsoever on any property or assets now owned or hereafter
acquired by it except pursuant to the Tenant Leases and in favor
of the Agent, for the benefit of the Banks, and except for
Permitted Liens described in clauses (a), (b), (c), (f), (i), (j)
and (k) of the definition of that term in Section 1.1, or (c)
hire or engage any employees.
SECTION 9. EVENTS OF DEFAULT.
The occurrence of any one or more of the following
events, whether voluntarily or involuntarily or by operation of
law, shall constitute an Event of Default hereunder:
9.1 Non-Payment. The Borrower shall (a) fail to pay
when due, whether by acceleration of maturity or otherwise, any
installment of principal due hereunder or under any Note or (b)
fail to pay when due, whether by acceleration of maturity or
otherwise, or within two days thereafter, any installment of
interest due hereunder or under any Note or any fee or other
payment obligation in respect of the Obligations or payable
pursuant to the Fee Letter.
9.2 Failure of Performance in Respect of Other
Obligations. (a) The Borrower shall fail to observe, perform or
be in compliance with any of the provisions of Section 8,
Sections 7.1 or 7.3 or the first sentence of Section 7.2; or (b)
the Borrower, any of its Subsidiaries, Holdco or any other party
to a Collateral Document (other than the Agent or a Bank) shall
fail to observe, perform or be in compliance with the terms of
any Obligation, covenant or agreement, other than those referred
to in Section 9.1, Section 8, Sections 7.1 or 7.3 or the first
sentence of Section 7.2, to be observed, performed or complied
with by the Borrower, such Subsidiary or such other party
hereunder or under any Collateral Document and, provided that
such failure is of a type which can be cured, such failure shall
continue and not be cured for thirty days after: (i) notice
thereof from the Agent or a Bank or (ii) the Agent or the Banks
are notified thereof or should have been notified thereof
pursuant to the provisions of Section 7.6, whichever is earlier;
or (c) any party to any Pledge Agreement shall, or shall attempt
to, voluntarily or involuntarily, encumber, subject to any
further pledge or security interest, sell, transfer or otherwise
dispose of any of the Pledged Collateral (as that term is defined
in any Pledge Agreement) or any interest therein except as
expressly provided herein or therein.
9.3 Breach of Warranty. Any financial statement,
representation, warranty, statement or certificate made or
furnished by the Borrower, any of its Subsidiaries, Holdco or any
other party to a Collateral Document (other than the Agent or a
Bank) to the Agent or the Banks in or in connection with this
Agreement or any Collateral Document, or as an inducement to the
Agent or the Banks to enter into this Agreement or any of the
Collateral Documents, including, without limitation, those in
Section 5 above or in any Collateral Document, shall have been
false, incorrect or incomplete when made or deemed made in any
material respect.
9.4 Cross-Defaults. Any default shall have occurred
under the Formation Agreement and shall not have been cured
within any applicable cure period and the effect of such default
on Holdco, the Borrower or any of its Subsidiaries, if
quantifiable by a dollar amount, could reasonably be expected to
exceed $2,500,000, or if not so quantifiable, could reasonably be
expected to have a Material Adverse Effect; or the Borrower or
any of its Subsidiaries shall default in any payment due on any
Indebtedness in excess of $2,500,000 in the aggregate and such
default shall continue for more than the period of grace, if any,
applicable thereto; or the Borrower or any of its Subsidiaries
shall default in the performance of or compliance with any term
of any evidence of such Indebtedness or of any mortgage,
indenture or other agreement relating thereto, and any such
default shall continue for more than the period of grace, if any,
specified therein and shall not have been waived pursuant thereto
if such default causes, or permits the holder thereof to cause,
the acceleration of such Indebtedness.
9.5 Assignment for Benefit of Creditors. The Borrower,
any of its Subsidiaries or Holdco shall make an assignment for
the benefit of its creditors, or shall admit its insolvency or
shall fail to pay its debts generally as such debts become due.
9.6 Bankruptcy. Any petition seeking relief under
Title 11 of the United States Code, as now constituted or
hereafter amended, shall be filed by or against the Borrower, any
of its Subsidiaries or Holdco or any proceeding shall be
commenced by or against the Borrower, any of its Subsidiaries or
Holdco with respect to relief under the provisions of any other
applicable bankruptcy, insolvency or other similar law of the
United States or any State providing for the reorganization,
winding-up or liquidation of Persons or an arrangement,
composition, extension or adjustment with creditors; provided,
however, that no Event of Default shall be deemed to have
occurred if any such involuntary petition or proceeding shall
be discharged within sixty days of its filing or commencement.
9.7 Appointment of Receiver; Liquidation. A receiver
or trustee shall be appointed for the Borrower, any of its
Subsidiaries or Holdco or for any substantial part of its
assets, and such receiver or trustee shall not be discharged
within sixty days of his appointment; any proceedings shall be
instituted for the dissolution or the full or partial
liquidation of the Borrower, any of its Subsidiaries or Holdco
and such proceedings shall not be dismissed or discharged
within sixty days of their commencement; or the Borrower, any
of its Subsidiaries or Holdco shall discontinue its business.
9.8 Judgments. The Borrower, any of its Subsidiaries
or Holdco shall incur a final judgment for the payment of money
in an amount which, together with all other final judgments
against the Borrower, any of its Subsidiaries or Holdco,
exceeds $2,500,000 in the aggregate, and shall not discharge
(or make adequate provision for the discharge of) the same
within a period of thirty days unless, pending further
proceedings, execution thereon has been effectively stayed; or
a non-monetary judgment or order shall be rendered against the
Borrower, any of its Subsidiaries or Holdco that could
reasonably be expected to have a Material Adverse Effect, and
there shall be any period in excess of thirty consecutive days
during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in
effect.
9.9 Tenant Leases; Transaction Documents.
(a) The Global Lease or any other material
Tenant Leases shall be terminated for any reason or modified in
any manner materially adverse to the Borrower, any of its
Subsidiaries or the Banks, or Supplements to the Global Lease
in respect of any Material Towers shall be terminated within
any twelve month period, or any tenant under the Global Lease
shall offset any material amount against rent owing under the
Global Lease to a Subsidiary (unless such offset is to
reimburse such tenant for a payment made by it under the Global
Lease that at the time of such payment should have been made by
the Tower Subsidiary pursuant to subsection (b) or (c) of
Section 9 of the Tower Subsidiary Security Agreement or any
comparable provision of any other Security Agreement so long as
such tenant agrees that upon such offset for the full amount so
reimbursable it will not exercise any other remedy under the
Global Lease), or any party to the Global Lease shall default
thereunder and such default shall not be cured within the
applicable cure period, if any, or any tenant under the Global
Lease shall assign any of its rights under the Global Lease or
any material Supplements thereto to any Person (unless the
number of Towers affected by all such assignments since the
Closing Date is less than 140).
(b) Any default shall occur under the Build to
Suit Agreement, the Management Agreement or any of the other
Transaction Documents and shall not have been waived or cured
within any applicable cure period and the effect of such
default on Holdco, the Borrower or any of its Subsidiaries, if
quantifiable by a dollar amount, could reasonably be expected
to exceed $2,500,000, or if not so quantifiable, could
reasonably be expected to have a Material Adverse Effect.
9.10 Impairment of Collateral; Invalidation of any
Loan Document. (a) A creditor of the Borrower, of any of its
Subsidiaries, of Holdco or of any other party to a Collateral
Document shall obtain possession of any of the collateral for
the Obligations or in any other material property of the
Borrower, any of its Subsidiaries or Holdco by any means,
including, without limitation, attachment, levy, distraint,
replevin or self-help, or any creditor shall establish or
obtain any right in such collateral or other property; or (b)
the Agent shall cease to have a perfected, first priority Lien
on all of the issued and outstanding Membership Interests of
the Borrower and of each Subsidiary of the Borrower; or (c) any
Lien created or purported to be created by this Agreement or
any Collateral Document shall cease or fail to be perfected
with respect to any of the collateral purported to be covered
thereby; or (d) any material portion of the property of the
Borrower or any of its Subsidiaries shall be lost, stolen,
damaged or destroyed for which there is either no insurance
coverage; or (e) this Agreement, any Note or any Collateral
Document ceases to be a legal, valid, binding agreement or
obligation enforceable against any party thereto (including the
Agent and the Banks) in accordance with its terms, or shall be
terminated, invalidated, set aside or declared ineffective or
inoperative; or (f) any party to any Collateral Document shall
contest or deny the validity or enforceability of such
Collateral Document or any lien, security interest or
obligation purported to be created thereby.
9.11 Termination of License or Agreements. The FCC,
the FAA or any other Licensing Authority shall revoke,
terminate, substantially and adversely modify or fail to renew
any License, or any group of Licenses, of the Borrower or any
of its Subsidiaries or commence proceedings to suspend, revoke,
terminate or substantially and adversely modify any such
License and such proceedings shall not be dismissed or
discharged within sixty days if such revocation, termination,
modification or failure to renew could reasonably be expected
to have a Material Adverse Effect; or the License Agreements or
any Land Lease Agreements or other agreements which are
necessary to the operation of the business of the Borrower or
any of its Subsidiaries shall be revoked, terminated or
adversely modified and not replaced by substitutes acceptable
to the Agent within thirty days of such revocation, termination
or modification and without which agreements a Material Adverse
Effect could reasonably be expected.
9.12 Change of Control. (i) A Subsidiary of CCIC or
BAM (or any of its Subsidiaries) shall cease to own all of the
issued and outstanding Membership Interests and other equity
interests in Holdco; (ii) Holdco shall cease to own directly
all of the issued and outstanding Membership Interests and
other equity interests of the Borrower; (iii) the Borrower
shall cease to own directly all of the issued and outstanding
Membership Interests and other equity interests of the Tower
Subsidiary or any other Subsidiary other than the 0.001%
Membership Interest in the Tower Subsidiary held by BAM or a
comparable interest in any such other Subsidiary to be held by
BAM; or (iv) BAM shall cease to own the 0.001% Membership
Interest in the Tower Subsidiary (except pursuant to a transfer
in accordance with Section 8.21(a)).
9.13 Unrestricted Subsidiary. Any of Holdco, the
Borrower or any of the Borrower's Subsidiaries shall cease to
be an Unrestricted Subsidiary, as that term is defined in the
CCIC Indenture.
9.14 Default under Collateral Document. The Borrower,
any of its Subsidiaries, Holdco, BAM, BAM Sub or any other
party (other than the Agent and the Banks) shall default under
any Collateral Document after any required notice and such
default shall continue beyond any applicable grace period.
9.15 Condemnation. Any court, government or
governmental agency shall condemn, seize, or otherwise
appropriate, or take custody or control of any substantial
portion of the assets of the Borrower or any of its
Subsidiaries.
9.16 Material Adverse Effect. Any Material Adverse
Effect shall occur.
SECTION 10. REMEDIES.
Notwithstanding any contrary provision or inference
herein or elsewhere,
10.1 Optional Defaults. If any Event of Default
referred to in Section 9.1 through and including Section 9.4 or
Section 9.8 through and including Section 9.16 shall occur, the
Issuing Bank shall not be required to issue any additional
Letters of Credit, and the Agent, with the consent of the
Required Banks, upon written notice to the Borrower, may
(a) terminate the Commitment and the credit
hereby established and forthwith upon such election the
obligations of the Banks to make any further Loans hereunder
(other than Loans resulting from the funding of Letters of
Credit) immediately shall be terminated, and/or
(b) accelerate the maturity of the Loans and all
other Obligations, whereupon all Obligations shall become and
thereafter be immediately due and payable in full without any
presentment or demand and without any further or other notice of
any kind, all of which are hereby waived by the Borrower, and/or
(c) demand the payment to the Issuing Bank of the
aggregate stated amount of the outstanding Letters of Credit,
which amount the Issuing Bank shall hold as security for the
obligations incurred under the Letters of Credit.
10.2 Automatic Defaults. If any Event of Default
referred to in Sections 9.5-9.7 shall occur,
(a) the Commitment and the credit hereby
established shall automatically and forthwith terminate, and the
Banks thereafter shall be under no obligation to grant any
further Loans hereunder (other than Loans resulting from the
funding of Letters of Credit), and
(b) the principal of and interest on the Notes,
then outstanding, and all of the other Obligations shall
thereupon become and thereafter be immediately due and payable in
full, all without any presentment, demand or notice of any kind,
which are hereby waived by the Borrower, and
(c) the Issuing Bank shall not be required to
issue any additional Letters of Credit, and the aggregate stated
amount of the outstanding Letters of Credit shall be immediately
payable by the Borrower to the Issuing Bank, which amount the
Issuing Bank shall hold as security for the obligations incurred
under the Letters of Credit.
10.3 Performance by the Banks. If at any time the
Borrower or any of its Subsidiaries fails or refuses to pay or
perform any material obligation or duty to any third Person,
except for payments which are the subject of bona fide disputes
in the ordinary course of business, the Agent or the Banks may,
in their sole discretion, but shall not be obligated to, pay or
perform the same on behalf of the Borrower or such Subsidiary,
and the Borrower shall promptly repay all amounts so paid, and
all costs and expenses so incurred. This repayment obligation
shall become one of the Obligations of the Borrower hereunder and
shall bear interest at the Default Interest Rate.
10.4 Other Remedies. Upon the occurrence of an Event of
Default, the Agent and the Banks may exercise any other right,
power or remedy as may be provided herein, in any Note or in any
other Collateral Document, or as may be provided at law or in
equity, including, without limitation, the right to recover
judgment against the Borrower for any amount due either before,
during or after any proceedings for the enforcement of any
security or any realization upon any security.
10.5 Enforcement and Waiver by the Banks. The Agent and
the Banks shall have the right at all times to enforce the
provisions of this Agreement and all Collateral Documents in
strict accordance with the terms hereof and thereof,
notwithstanding any conduct or custom on the part of the Agent or
the Banks in refraining from so doing at any time, unless the
Banks shall have waived such enforcement in writing in respect of
a particular instance. The failure of the Agent or the Banks at
any time to enforce their rights under such provisions shall not
be construed as having created a custom or course of dealing in
any way contrary to the specific provisions of this Agreement or
the Collateral Documents, or as having in any way modified or
waived the same. All rights, powers and remedies of the Agent and
the Banks are cumulative and concurrent and the exercise of one
right, power or remedy shall not be deemed a waiver or release of
any other right, power or remedy.
SECTION 11. THE AGENT.
11.1 Appointment. Key Corporate Capital Inc. is hereby
appointed agent hereunder, and each of the Banks irrevocably
authorizes the Agent to act as the agent of such Bank. The Agent
agrees to act as such upon the express conditions contained in
this Section 11. The Agent shall not have a fiduciary
relationship in respect of any Bank by reason of this Agreement.
In its capacity as Agent hereunder, the Agent does not hereby
assume any fiduciary duties to any of the Banks and is acting as
an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the
other Collateral Documents. Each of the Banks hereby agrees to
assert no claim against the Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of
which claims each Bank hereby waives.
11.2 Powers. The Agent shall have and may exercise such
powers hereunder as are specifically delegated to it by the terms
hereof, together with such powers as are reasonably incidental
thereto. The Agent shall not have any implied duties or any
obligation to the Banks to take any action hereunder except any
action specifically provided by this Agreement to be taken by the
Agent.
11.3 General Immunity. Neither the Agent nor any of its
directors, officers, affiliates, agents or employees shall be
liable to the Banks or any Bank for any action taken or omitted
to be taken by it or them hereunder or in connection herewith
except for its or their own gross negligence or willful
misconduct. Without limiting the foregoing, neither the Agent
nor any of its directors, officers, affiliates, agents or
employees shall be responsible for, or have any duty to examine
(a) the genuineness, execution, validity, effectiveness,
enforceability, value or sufficiency of this Agreement, any
Collateral Document, or any other document or instrument
furnished pursuant to or in connection with this Agreement or any
Collateral Document, (b) the collectibility of any amounts owed
by the Borrower or any of its Subsidiaries, (c) any recitals,
statements, reports, representations or warranties made in
connection with this Agreement or any Collateral Document, (d)
the performance or satisfaction by the Borrower or any of its
Subsidiaries of any covenant or agreement contained herein or in
any Collateral Document, (e) any failure of any party to this
Agreement to receive any communication sent, including any
telegram, teletype, bank wire, cable, radiogram or telephone
message sent or any writing, application, notice, report,
statement, certificate, resolution, request, order, consent
letter or other instrument or paper or communication entrusted to
the mails or to a delivery service, or (f) the assets or
liabilities or financial condition or results of operations or
business or credit-worthiness of the Borrower or any of its
Subsidiaries. The Agent shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms
of this Agreement or any Collateral Document.
11.4 Action on Instructions of the Banks. The Agent
shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Required Banks (subject to
Section 11.12 hereof), and such instructions shall be binding
upon all the Banks and all holders of the Notes; provided,
however, that the Agent shall not be required to take any action
which exposes it to personal liability or which is contrary to
this Agreement or applicable law. The foregoing provisions of
this Section 11.4 shall not limit in any way the exercise by any
Bank of any right or remedy granted to such Bank pursuant to the
terms of this Agreement or any Collateral Document. Except as
otherwise expressly provided herein, any reference in this
Agreement to action by the Banks shall be deemed to be a
reference to the Required Banks.
11.5 Employment of Agents and Counsel. The Agent may
execute any of its duties as Agent hereunder by or through
employees, agents and attorneys-in-fact and shall not be
answerable to the Banks, except as to money or securities
received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in- fact selected by
it with reasonable care.
11.6 Reliance on Documents; Counsel. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper, document or other
communications believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and,
with respect to legal matters, upon the opinion of counsel
selected by the Agent, which counsel may be employees of the
Agent, concerning all matters pertaining to the agency hereby
created and its duties hereunder.
11.7 Agent's Reimbursement and Indemnification. The
Banks agree to reimburse and indemnify the Agent (which
indemnification shall be shared by the Banks ratably in
proportion to their respective Ratable Shares) (a) for any
amounts not reimbursed by the Borrower for which the Agent is
entitled to reimbursement by the Borrower hereunder or under any
Collateral Document, (b) for any other expenses reasonably
incurred by the Agent on behalf of the Banks, in connection with
the preparation, execution, delivery, administration, amendment
or enforcement hereof or of any of the Collateral Documents and
(c) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind and nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in any way relating to or
arising out of this Agreement, any Collateral Document or any
other document related hereto or thereto or the transactions
contemplated hereby or the enforcement of any of the terms hereof
or thereof or of any such other documents, provided that no Bank
shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Agent.
11.8 Rights as a Bank. With respect to its Ratable
Share of the Commitment and the Letters of Credit, the Loans made
by it and the Notes issued to it, the Agent shall have the same
rights and powers hereunder as any Bank and may exercise the same
as though it were not the Agent, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include the Agent
in its individual capacity. The Agent may accept deposits from,
lend money to, and generally engage in any kind of banking or
trust business with the Borrower and its Subsidiaries as if it
were not the Agent hereunder.
11.9 Bank Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon the Agent or any
other Bank and based on the financial statements prepared by the
Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement and the other Collateral Documents.
Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Collateral
Documents. The Agent shall not be required to keep the Banks
informed as to the performance or observance by the Borrower or
its Subsidiaries of this Agreement or any other document referred
to or provided for herein or to inspect the properties or books
of the Borrower or any of its Subsidiaries. Except for notices,
reports and other documents and information expressly required to
be furnished to the Banks by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial
condition or business of the Borrower or any of its Subsidiaries
which may come into its possession.
11.10 Successor Agent.
(a) The Agent may, without the consent of the
Borrower or the other Banks, assign its rights and obligations as
Agent hereunder and under the Collateral Documents to its parent
or to any wholly owned subsidiary of its parent which has capital
and retained earnings of at least $500,000,000, and upon such
assignment, the former Agent shall be deemed to have retired, and
such wholly owned subsidiary shall be deemed to be a successor
Agent.
(b) The Agent may resign at any time by giving
written notice thereof to the Banks. Upon any such resignation,
the Required Banks, with the consent of the Borrower, which shall
not be unreasonably withheld, shall have the right to appoint a
successor Agent; provided, however, that the consent of the
Borrower shall not be required if at the time of such resignation
an Event of Default exists. If no successor Agent shall have been
so appointed by the Required Banks and shall have accepted such
appointment within thirty days after the notice of resignation,
then the retiring Agent may appoint a successor Agent. Such
successor Agent shall be a commercial bank having capital and
retained earnings of at least $500,000,000.
(c) Upon the acceptance of any appointment as the
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the assigning or retiring Agent,
and the assigning or retiring Agent shall be discharged from its
duties and obligations hereunder. After any assigning or retiring
Agent's resignation hereunder as the Agent, the provisions of
this Section 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while
it was acting as the Agent hereunder.
11.11 Ratable Sharing. All principal and interest
payments on Loans and commitment fees received by the Agent shall
be remitted to the Banks in accordance with their Ratable Shares.
Any amounts received by the Agent or any other Bank upon the sale
of any collateral for the Loans or upon the exercise of any
remedies hereunder or under any of the Collateral Documents or
upon the exercise of any right of setoff shall be remitted to the
Banks in accordance with their Ratable Shares; provided, however,
that, solely for purposes of the sharing of any amounts received
by the Agent or any other Bank, if at the time of any such
receipt the Borrower has defaulted under any agreements regarding
Rate Hedging Obligations with any Bank or the Affiliate of any
Bank, such Bank's Ratable Share shall be proportionately
increased and the Ratable Shares of the other Banks shall be
proportionately decreased based upon the amount due to the
affected Bank (or such Bank's Affiliate) pursuant to such
agreements. If any Bank shall obtain any payment hereunder
(whether voluntary, involuntary, through exercise of any right of
set-off or otherwise) in excess of its Ratable Share, then such
Bank shall immediately remit such excess to the other Banks pro
rata.
11.12 Actions by the Agent and the Banks. The Agent
shall take formal action following the occurrence of a Possible
Default or an Event of Default only upon the agreement of the
Required Banks; provided, however, that if -------- ------- the
Agent gives notice to the Banks of a Possible Default or an Event
of Default, and the Required Banks cannot agree (which agreement
shall not be unreasonably withheld) on a mutual course of action
within ten days following such notice, the Agent may (but shall
not be required to) pursue such legal rights and remedies against
the Borrower as it deems necessary and appropriate to protect the
Banks and any collateral under the circumstances.
SECTION 12. MISCELLANEOUS.
12.1 Construction. The provisions of this Agreement
shall be in addition to those of the Collateral Documents and to
those of any other guaranty, security agreement, note or other
evidence of the liability relating to the Borrower held by the
Banks, all of which shall be construed as complementary to each
other. Nothing contained herein shall prevent the Agent or the
Banks from enforcing any or all of such instruments in accordance
with their respective terms. Each right, power or privilege
specified or referred to in this Agreement or in any Collateral
Document is in addition to any other rights, powers or privileges
that the Agent or the Banks may otherwise have or acquire by
operation of law, by other contract or otherwise. No course of
dealing in respect of, nor any omission or delay in the exercise
of, any right, power or privilege by the Agent or the Banks shall
operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any further or other exercise thereof
or of any other, as each right, power or privilege may be
exercised independently or concurrently with others and as often
and in such order as the Agent or the Banks may deem expedient.
Notwithstanding any other provision of this Agreement, the
Borrower shall not be required to pay any amount of interest
pursuant hereto or pursuant to the Notes which is in excess of
the maximum amount permitted by law.
12.2 Further Assurance. From time to time, the Borrower
shall, and shall cause its Subsidiaries to, execute and deliver
to the Agent and the Banks such additional documents and take
such additional actions as the Agent may require to carry out the
purposes of this Agreement or any of the Collateral Documents, or
to preserve and protect the rights of the Agent and the Banks
hereunder or thereunder.
12.3 Expenses of the Agent and the Banks;
Indemnification.
(a) Whether or not the transactions contemplated
by this Agreement are consummated, the Borrower shall pay the
costs and expenses, including the reasonable fees and
disbursements of the Agent's special counsel, incurred by the
Agent and the Banks in connection with (i) the negotiation,
preparation, administration, amendment or enforcement of this
Agreement and the Collateral Documents and the closing of the
transactions contemplated hereby and thereby; (ii) the perfection
of the Liens granted pursuant hereto or pursuant to the
Collateral Documents; (iii) the making of the Loans and issuance
of the Letters of Credit hereunder; (iv) the negotiation,
preparation or enforcement of any other document in connection
with this Agreement, the Collateral Documents or the Loans made
or Letters of Credit issued hereunder; (v) any proceeding brought
or formal action taken by the Agent or the Banks to enforce any
provision of this Agreement or any Collateral Document, or to
enforce or exercise or preserve any right, power or remedy
hereunder or thereunder; or (vi) any action which may be taken or
instituted by any Person against the Agent or any Bank as a
result of any of the foregoing. The fees and expenses of the
Agent's special counsel through the Closing shall be paid on the
Closing Date. If any taxes, charges or fees shall be payable, or
ruled to be payable, to any state or Federal authority in respect
of the execution, delivery or performance of this Agreement, any
Note or any other Collateral Document by reason of any existing
or hereinafter enacted Federal or state statute (other than any
such taxes on the net income of the Banks and any taxes, charges
or fees which are included in the LIBOR Reserve Percentage), the
Borrower will pay all such taxes, charges or fees, including
interest and penalties thereon, if any, and will indemnify and
hold harmless the Agent and the Banks against any liability in
connection therewith.
(b) The Borrower hereby indemnifies and holds
harmless the Agent and each Bank and their respective directors,
officers, employees, agents, counsel, subsidiaries and affiliates
(the "Indemnified Persons") from and against any and all claims,
losses, liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including reasonable attorneys fees) which may
be imposed on, incurred by, or asserted against any Indemnified
Person in any way relating to or arising out of this Agreement,
the Collateral Documents, the Transaction Documents, or any of
them, or the Loans made pursuant hereto or the Letters of Credit
issued pursuant hereto, or the use of the proceeds thereof, or
any of the transactions contemplated hereby or thereby or the
business, assets or operations of the Borrower or its
Subsidiaries or the ownership, maintenance, operation or
management of the Towers; provided, however, that the Borrower
shall not be liable to any Indemnified Person, if there is a
final non- appealable judicial determination that such claims,
losses, liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulted
solely from the gross negligence or willful misconduct of such
Indemnified Person.
12.4 Notices. Except as otherwise expressly provided
herein, all notices, demands and requests required or permitted
to be given under the provisions of this Agreement shall be in
writing and shall be deemed to have been duly delivered and
received (a) on the date of personal delivery, (b) on the date of
receipt (as shown on the return receipt) if mailed by registered
or certified mail, postage prepaid and return receipt requested,
(c) on the next business day after delivery to a courier service
that guarantees delivery on the next business day if the
conditions to the courier's guarantee are complied with, or (d)
on the date of receipt (if such date is a Banking Day, otherwise
on the next Banking Day) by telecopy, in each case addressed as
follows:
TO THE AGENT:
Key Corporate Capital Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Media and Telecommunications Finance
Division
Telecopy: 000-000-0000
With a copy (which shall not constitute
notice) to:
Xxxxxxx X. Xxxxxx, Esq.
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy: 202-776-2222
TO THE BANKS, AT THE ADDRESSES LISTED ON THE
SIGNATURE PAGES HEREOF OR IN THE ASSIGNMENT
INSTRUMENT DELIVERED PURSUANT TO SECTION
12.7(b)
TO THE BORROWER:
Crown Atlantic Holding Sub LLC
000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Telecopy: 000-000-0000
with copies (which shall not constitute
notice) to:
Xxxx Atlantic Mobile
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxx, CFO
Telecopy: 000-000-0000
and
Xxxxxx X. Xxxxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxx, L.L.P.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
or to such other address or addresses as the party to which such
notice is directed may have designated in writing to the other
parties hereto.
12.5 Waiver and Release by the Borrower. Neither the
Agent, nor any Bank, nor any Affiliate, officer, director,
employee, attorney or agent of the Agent or any Bank shall have
any liability with respect to, and the Borrower hereby waives,
releases and agrees not to xxx any of them upon, any claim for
any special, indirect, incidental or consequential damages
suffered or incurred by the Borrower or any of its Subsidiaries
in connection with, arising out of, or in any way related to,
this Agreement or any of the Collateral Documents, or any of the
transactions contemplated by this Agreement or any of the
Collateral Documents, and the Borrower hereby releases the Agent
and each Bank from, and hereby waives, all claims for loss or
damage caused by any act or omission on the part of the Agent or
any Bank or their respective officers, attorneys, agents and
employees, except gross negligence and willful misconduct.
12.6 Right of Set Off. Upon the occurrence and during
the continuance of any Event of Default (but subject to the
provisions of Section 9 of the Tower Subsidiary Security
Agreement or any comparable provision of any other Security
Agreement), each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set-off
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank or an Affiliate of
such Bank to or for the credit or the account of the Borrower or
any of its Subsidiaries against any and all of the obligations of
the Borrower and its Subsidiaries now or hereafter existing
hereunder or under any Collateral Document, irrespective of
whether or not such Bank or its Affiliate shall have made any
demand hereunder or under any Collateral Document and although
such obligations may be unmatured. The rights of the Banks under
this Section are in addition to other rights and remedies
(including without limitation, other rights of set-off) which the
Banks may have; provided, however, that all such other rights of
set-off shall be subject to Section 9 of the Tower Subsidiary
Security Agreement or Section 9 of the Borrower Security
Agreement or any comparable provision of any other Security
Agreement, as the case may be. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law,
that any other holder of a participation in any Note may exercise
rights of set-off or counterclaim and other rights with respect
to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower or any of
its Subsidiaries in the amount of such participation.
12.7 Successors and Assigns; Participations.
(a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; provided, however, that
the Borrower shall not assign or transfer any of its rights or
obligations hereunder or under any Note without the prior written
consent of all of the Banks and the Agent.
(b) Each Bank may assign all or any part of any of
its Loans, its Notes, and its share of the Commitment and the
Letters of Credit with the consent of the Borrower and the Agent,
which consent shall not be unreasonably withheld; provided that
(i) no such consent by the Borrower shall be required (A) for any
such assignment by any Bank to an Affiliate of such Bank or to
another Bank or an Affiliate of another Bank, or (B) if, at the
time of such assignment, an Event of Default or Possible Default
has occurred and is continuing; (ii) any such partial assignment
shall be in an amount at least equal to $5,000,000; (iii) each
such assignment shall be made by a Bank in such manner that the
same portion of its Loans, its Notes, its share of the Commitment
and its participation in the Letters of Credit is assigned to the
assignee; and (iv) the assignee, if not already a Bank, shall
agree to become a party to the BAM Purchase Agreement. Upon
execution and delivery by the assignor and the assignee to the
Borrower and the Agent of an instrument in writing pursuant to
which such assignee agrees to become a "Bank" hereunder (if not
already a Bank) having the share of the Commitment, Loans and
Letters of Credit specified in such instrument, and upon consent
thereto by the Agent and the Borrower (to the extent required),
the assignee shall have, to the extent of such assignment (unless
otherwise provided in such assignment with the consent of the
Agent), the obligations, rights and benefits of a Bank hereunder
holding the share of the Commitment, Loans and Letters of Credit
(or portions thereof) assigned to it (in addition to the share of
the Commitment, Loans and Letters of Credit, if any, theretofore
held by such assignee) and the assigning Bank shall, to the
extent of such assignment, be released from the share of the
Commitment, the Letters of Credit and the obligations hereunder
so assigned.
(c) Upon its receipt of an assignment pursuant to
Section 12.7(b) above duly executed by an assigning Bank and the
assignee, together with any Note subject to such assignment and a
processing and recordation fee of $3,500, the Agent shall, if
such assignment has been completed, accept such assignment.
Within five business days after receipt of such notice, the
Borrower, at the Borrower's own expense, shall execute and
deliver to the Agent in exchange for each surrendered Note a new
Note to the order of the assignee in an amount equal to the share
of the Commitment, of the Loans and of the Letters of Credit
assumed by the assignee and, if the assigning Bank has retained a
portion of the Commitment, the Loans and the Letters of Credit
hereunder, a new Note to the order of the assigning Bank in an
amount equal to the share of the Commitment and the Loans and the
Letters of Credit retained by it hereunder. Such new Notes shall
be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Notes, shall be dated the
effective date of such assignment and shall otherwise be in
substantially the form of Exhibit A hereto. Cancelled Notes shall
be returned to the Borrower.
(d) A Bank may sell or agree to sell to one or
more other Persons (each, a "Participant") a participation in all
or any part of any Loans held by it, or in its share of the
Commitment and the Letters of Credit. Except as otherwise
provided in the last sentence of this Section 12.7(d), no
Participant shall have any rights or benefits under this
Agreement or any Note or any other Collateral Documents (the
Participant's rights against such Bank in respect of such
participation to be those set forth in the agreements executed by
such Bank in favor of the Participant). All amounts payable by
the Borrower to any Bank under Section 2 hereof in respect of
Loans held by it, and its share of the Commitment, shall be
determined as if such Bank had not sold or agreed to sell any
participations in such Loans and share of the Commitment, and as
if such Bank were funding each of such Loans and its share of the
Commitment in the same way that it is funding the portion of such
Loans and its share of the Commitment in which no participations
have been sold. In no event shall a Bank that sells a
participation agree with the Participant to take or refrain from
taking any action hereunder or under any other Collateral
Document except that such Bank may agree with the Participant
that it will not, without the consent of the Participant, agree
to any modification, supplement or waiver hereof or of any of the
other Collateral Documents to the extent that the same, under
Section 12.14 hereof, requires the consent of each Bank. The
Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.6 through 2.13 and Section 12.6 with
respect to its participating interest.
(e) In addition to the assignments and
participations permitted under the foregoing provisions of this
Section 12.7, any Bank may assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank. No such assignment
shall release the assigning Bank from its obligations hereunder.
(f) A Bank may furnish any information concerning
the Borrower and its Subsidiaries in the possession of such Bank
from time to time to assignees and participants (including
prospective assignees and participants).
(g) Anything in this Section 12.7 to the contrary
notwithstanding, except pursuant to the BAM Purchase Agreement,
no Bank may assign or participate any interest in any Loan held
by it hereunder to the Borrower or any of its Affiliates without
the prior written consent of each Bank.
12.8 Applicable Law. THIS AGREEMENT AND THE COLLATERAL
DOCUMENTS, AND THE DUTIES, RIGHTS, POWERS AND REMEDIES OF THE
PARTIES HERETO AND THERETO, SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF OHIO (WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF), EXCEPT TO
THE EXTENT THAT ANY COLLATERAL DOCUMENT PROVIDES THAT THE LOCAL
LAW OF ANOTHER JURISDICTION GOVERNS THE GRANT, PERFECTION OR
ENFORCEMENT OF THE LIENS GRANTED PURSUANT TO SUCH COLLATERAL
DOCUMENT. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY
DISCUSSED BY THE BORROWER AND THE AGENT ON BEHALF OF THE BANKS
AND SHALL BE SUBJECT TO NO EXCEPTIONS. THE BORROWER HAS MADE THIS
CHOICE OF GOVERNING LAW KNOWINGLY AND WILLINGLY AND AFTER
CONSULTING WITH ITS COUNSEL. NONE OF THE AGENT, ANY BANK NOR THE
BORROWER HAS AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT
THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
12.9 ENFORCEMENT. THE BORROWER (A) HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF
OHIO AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO, FOR THE PURPOSE OF ANY SUIT,
ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR ANY COLLATERAL DOCUMENT OR THE SUBJECT MATTER HEREOF
OR THEREOF BROUGHT BY THE AGENT OR THE BANKS OR THEIR SUCCESSORS
OR ASSIGNS AND (B) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY
WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY
TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY
IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT
THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT
THIS AGREEMENT OR ANY COLLATERAL DOCUMENT OR THE SUBJECT MATTER
HEREOF OR THEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT, AND
(C) HEREBY WAIVES AND AGREES NOT TO SEEK ANY REVIEW BY ANY COURT
OF ANY OTHER JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN
ENFORCEMENT OF THE JUDGMENT OF ANY SUCH OHIO STATE OR FEDERAL
COURT. THE BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS BY
REGISTERED MAIL AT THE ADDRESS TO WHICH NOTICES ARE TO BE GIVEN.
THE BORROWER AGREES THAT ITS SUBMISSION TO JURISDICTION AND ITS
CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE EXPRESS
BENEFIT OF THE AGENT AND THE BANKS. FINAL JUDGMENT AGAINST THE
BORROWER IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT, ACTION OR PROCEEDING ON THE
JUDGMENT, OR IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE
LAWS OF SUCH OTHER JURISDICTION; PROVIDED, HOWEVER, THAT THE
AGENT OR THE BANKS MAY AT THEIR OPTION BRING SUIT, OR INSTITUTE
OTHER JUDICIAL PROCEEDINGS, AGAINST THE BORROWER OR ANY OF ITS
ASSETS IN ANY XXXXX XX XXXXXXX XXXXX XX XXX XXXXXX XXXXXX OR OF
ANY COUNTRY OR PLACE WHERE THE BORROWER, OR SUCH ASSETS, MAY BE
FOUND.
12.10 JURY TRIAL WAIVER. THE BORROWER, THE AGENT AND
THE BANKS EACH WAIVE IRREVOCABLY, TO THE EXTENT PERMITTED BY LAW,
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE
BANKS AND THE BORROWER ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THIS AGREEMENT OR THE NOTES OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO AND
THERETO. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE BORROWER, THE
AGENT AND THE BANKS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND
THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. THE BORROWER, THE AGENT AND THE BANKS FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING (UNLESS EXPRESSLY MODIFIED IN WRITING BY ALL
PARTIES HERETO), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, THE COLLATERAL DOCUMENTS AND TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE LOANS. IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY
THE COURT.
12.11 Binding Effect and Entire Agreement; No Oral
Agreements. This Agreement shall inure to the benefit of, and
shall be binding upon, the respective successors and permitted
assigns of the parties hereto. This Agreement, the Schedules and
Exhibits hereto, which are hereby incorporated in this Agreement,
and the Collateral Documents constitute the entire agreement
among the parties on the subject matter hereof. There are no
unwritten or oral agreements among the Borrower, the Agent and
the Banks, and this written Agreement, the Notes, the other
Collateral Documents, and the instruments and documents executed
in connection herewith, represent the final agreement between the
parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties.
12.12 Counterparts. This Agreement may be executed in
any number of counterparts or duplicate originals, each of which
shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
12.13 Survival of Agreements. All covenants,
agreements, representations and warranties made herein or in any
Collateral Document shall survive any investigation and the
Closing, and shall continue in full force and effect so long as
any of the Obligations remain to be performed or paid or the
Banks have any obligation to advance sums or issue Letters of
Credit hereunder or any Letter of Credit remains outstanding.
12.14 Modification. Any term of this Agreement or of
any Note may be amended and the observance of any term of this
Agreement or of any Note may be waived (either generally or in a
particular instance and either retroactively or prospectively)
only with the written consent of the Borrower and the Required
Banks, and any amendment or waiver effected in accordance with
this Section 12.14 shall be binding upon each holder of a Note at
the time outstanding, each future holder of a Note and the
Borrower; provided, however, that no such amendment or waiver or
other action shall, without the prior written consent of all of
the Banks or the holders of all of the Notes at the time
outstanding, (a) extend the maturity or reduce the principal
amount of, or reduce the rate or extend the time of payment of
interest on, or reduce the amount or extend the time of payment
of any principal installment of, any Note, (b) reduce the amount
or extend the time of payment of the commitment fees or the fees
shared by the Banks and payable in respect of Letters of Credit,
(c) change the Commitment or the Ratable Share of any Bank (other
than any change in Commitment or Ratable Share resulting from the
sale of a participation in or assignment of any Bank's interest
in the Commitment and Loans in accordance with Section 12.7), (d)
change the percentage referred to in the definition of "Required
Banks" contained in Section 1.1, or reduce the number of Banks
required to approve any consent, waiver, amendment or
modification, (e) amend this Section 12.14, (f) amend or waive
compliance with Section 2.5(b), or (g) release any collateral or
any guaranty for the Loans; and provided, further, that
notwithstanding the foregoing provisions of this Section 12.14,
this Agreement and the Notes may be amended or modified in the
manner contemplated by Section 12.7 for the purpose of permitting
any Bank to assign its interest, rights and obligations hereunder
to another Person, if the appropriate assignment agreement or
counterparts thereof are executed by the Borrower (to the extent
required), the Agent and the appropriate Bank assignor and
assignee. In addition, no amendment, waiver or consent to the
provisions of Section 11 shall be made without the written
consent of the Agent, and no amendment, waiver or consent to the
provisions of Section 2.1(d) shall be made without the written
consent of the Issuing Bank. Any amendment or waiver effected in
accordance with this Section 12.14 shall be binding upon each
holder of any Note at the time outstanding, each future holder of
any Note and the Borrower.
12.15 Separability. If any one or more of the
provisions contained in this Agreement or any Collateral Document
should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of all remaining provisions
shall not in any way be affected or impaired. Any provision of
this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other
jurisdiction.
12.16 Section Headings. The section headings contained
herein are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
12.17 Termination. This Agreement shall terminate when
all amounts due hereunder, under each Note and under each
Collateral Document shall have been indefeasibly paid in full in
cash and all other Obligations hereunder or thereunder shall have
been fully performed, so long as no Letters of Credit are then
outstanding and the Banks have no further obligation to advance
sums or issue Letters of Credit hereunder. Notwithstanding the
foregoing, this Agreement shall continue to be effective or be
reinstated and relate back to such time as though this Agreement
had always been in effect, as the case may be, if at any time any
amount received by the Agent or any Bank in respect of the
Obligations is rescinded or must otherwise be restored or
returned by such Bank upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower, any
of its Subsidiaries, Holdco or any other Person or upon the
appointment of any intervenor or conservator of, or trustee or
similar official for, the Borrower, any of its Subsidiaries,
Holdco or any other Person or any substantial part of its
properties, or otherwise, all as though such payments had not
been made. Notwithstanding anything to the contrary contained
herein or in any Collateral Document, any indemnification or
expense reimbursement provision contained herein or in any
Collateral Document shall remain in full force and effect
notwithstanding the termination of this Agreement.
12.18 Interest Limitation. It is the intention of the
Borrower and the Banks to conform strictly to the respective
usury laws applicable to the Banks. Accordingly, if the
transactions contemplated hereby would be usurious under
applicable law as to any Bank, then, in that event,
notwithstanding anything to the contrary in the Notes or this
Agreement or in any other Collateral Document, it is agreed as
follows: (a) the aggregate of all consideration which
constitutes interest under law applicable to such Bank that is
contracted for, taken, reserved, charged or received under any
Note payable to such Bank or this Agreement or under any other
Collateral Document or otherwise in connection with such Note
shall under no circumstances exceed the maximum amount allowed by
such law (or, if the principal amount of such Note shall have
been or would thereby be paid in full, refunded to the Borrower);
and (b) in the event that the maturity of any Note payable to a
Bank is accelerated or in the event of any required or permitted
prepayment, then such consideration that constitutes interest
under law applicable to such Bank may never include more than the
maximum amount allowed by such applicable law, and excess
interest, if any, provided for in this Agreement or otherwise
shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be
credited by such Bank on the principal amount of such Note (or,
if the principal amount of such Note shall have been or would
thereby be paid in full, refunded by such Bank to the Borrower).
All calculations made to compute the rate of interest that is
contracted for, taken, reserved, charged or received under any
Note payable to any Bank or under this Agreement or under any
other Collateral Document or otherwise in connection with such
Note for the purpose of determining whether such rate exceeds the
maximum amount allowed by law applicable to such Bank shall be
made, to the extent permitted by such applicable law, by
amortizing, prorating, and spreading in equa parts during the
period of the full stated term of the Loan or Loans evidenced by
such Note all interest at any time contracted for, taken,
reserved, charged or received by such Bank in connection
therewith.
12.19 Confidentiality. In handling any information
which the Borrower has identified to the Agent and the Banks as
being confidential, the Agent and the Banks shall exercise the
same degree of care that they exercise with respect to their own
proprietary information of the same types to maintain the
confidentiality of any non-public information thereby received or
received pursuant to this Agreement except that disclosure of
such information may be made (a) to the subsidiaries or
affiliates of the Agent or any Bank in connection with their
present or prospective business relations with the Borrower or
any of its Subsidiaries, (b) to the Agent's or any Bank's
business and legal advisors, (c) to prospective transferees or
purchasers of any interest in the Loans, provided that they have
agreed to abide by confidentiality restrictions similar to those
set forth in this Section, (d) as required by law, regulation,
rule or order, subpoena, judicial order or similar order and (e)
as may be required in connecction with the examination, audit or
similar investigation of the Agent or any Bank.
12.20 Non-Recourse to CCIC; Limited Recourse to BAM.
Notwithstanding anything to the contrary contained herein or in
any Collateral Document, neither the Agent nor any Bank shall
have any recourse hereunder or thereunder against CCIC or any of
its assets or properties. Except as provided in the Collateral
Documents, neither the Agent nor any Bank shall have any recourse
hereunder or under the Collateral Documents against BAM or any of
its Affiliates or any of their respective assets or properties.
TO WITNESS THE ABOVE, the Borrower, the Banks, the
Issuing Bank and the Agent have caused this Loan Agreement to be
executed by their respective representatives thereunto duly
authorized as of the date first above written.
BORROWER:
CROWN ATLANTIC HOLDING SUB LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: President
AGENT:
KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
ISSUING BANK:
KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANKS:
KEY CORPORATE CAPITAL INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Attn: Media and Telecommunications Finance Division
LIST OF SCHEDULES AND EXHIBITS
Schedule 1.1 List of Banks and Ratable Shares
Exhibit A Form of Note
Exhibit B Financial Statements
Exhibit C Projections
Exhibit D Capitalization and
Subsidiaries
Exhibit E Proceedings, Litigation and
Non-Compliance with Law
Exhibit F Liens and Indebtedness
Exhibit G List of Contracts, Commitments
and Licenses
Exhibit H ERISA Liabilities and Plans
Exhibit I Real Property List
Exhibit J Form of Compliance Certificate
Exhibit K Form of Monthly Tower List
Exhibit L Procedure for Calculating Test
Operating Cash Flow at Closing
Exhibit M Environmental Conditions
