EXHIBIT 10.7
FIRST AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of October 31, 2001, by and among SpectraSite
Communications, Inc., a Delaware corporation (the "Borrower"), SpectraSite
Holdings, Inc., a Delaware corporation ("Holdco"), Canadian Imperial Bank of
Commerce, as administrative agent (the "Administrative Agent") and the other
Credit Parties signatory hereto (the "Credit Parties").
W I T N E S S E T H:
WHEREAS, the Borrower, Holdco, the Administrative Agent and the Credit
Parties are parties to that certain Amended and Restated Credit Agreement dated
as of February 22, 2001 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, Holdco,
CIBC World Markets Corp. and Credit Suisse First Boston, as joint lead arrangers
and bookrunners (the "Lead Arrangers"), CIBC World Markets Corp., Credit Suisse
First Boston, Bank of Montreal, Chicago Branch and TD Securities (USA) Inc., as
arrangers (the "Arrangers"), Credit Suisse First Boston, as syndication agent
(the "Syndication Agent"), Bank of Montreal, Chicago Branch and TD Securities
(USA) Inc., as co-documentation agents (the "Documentation Agents"), the
Administrative Agent and the other Credit Parties (as defined in the Credit
Agreement) party thereto; and
WHEREAS, Section 8.5(vi) of the Credit Agreement, Liquidation; Merger;
Acquisition or Disposition of Assets, limits the aggregate dollar amount
available to the Borrower and certain of the Designated Subsidiaries for the
acquisition and construction of Tower and Tower Sites without an anchor tenant
under contract to not more than $15,000,000; and
WHEREAS, the Borrower has invested approximately $50,000,000 for the
construction and acquisition of approximately 150 Towers and Tower Sites and for
costs associated with the proposed construction and acquisition of other Towers
and Tower Sites which ultimately the Borrower has determined not to pursue, in
any case in anticipation of leasing such Towers and Tower Sites (collectively,
the "Spec Towers") to Nextel without having a written contract with Nextel for
such lease in place; and
WHEREAS, the Borrower has requested, and the Administrative Agent and
the Credit Parties have agreed, (a) to waive compliance by the Borrower with
Section 8.5(vi) in connection with the Borrower's $50,000,000 investment in the
Spec Towers and (b) to amend the Credit Agreement as and to the extent set forth
herein;
NOW THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree that all capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement, as amended hereby, except as otherwise defined
or limited herein, and further agree, subject to the conditions precedent to
this Amendment hereinafter set forth, as follows:
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1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions, is
hereby modified and amended by adding the following definitions in appropriate
alphabetical order:
"'Deferred SBC Towers' shall have the meaning set forth in
Section 8.5(vii) hereof.
"'First Amendment Date' shall mean October 31, 2001.
"'SBC Amendment' shall mean that certain second amendment to
the SBC Agreement to Sublease to be entered into among SBC Wireless
(for itself and on behalf of the Sublessor Entities referred to
therein), Holdco and STI, which shall be in form and substance
reasonably satisfactory to the Lead Arrangers."
(b) Article 1 of the Credit Agreement, Definitions, is
hereby further modified and amended by deleting the existing definition of
"Borrower Leverage Ratio" in its entirety by substituting the following in lieu
thereof:
"'Borrower Leverage Ratio' shall mean, on any calculation
date, the ratio of (a) Borrower Debt, to (b) Annualized EBITDA;
provided, however, that for any calculation date during the period from
January 1, 2002 through December 31, 2002, an amount equal to (i) cash
on hand in excess of $5,000,000, less (ii) the aggregate principal
amount of all Revolving Loans and Swing Loans then outstanding, shall
be subtracted from Borrower Debt solely for purposes of determining the
numerator of the Borrower Leverage Ratio requirement set forth in
Section 9.1 hereof."
(c) Article 1 of the Credit Agreement, Definitions, is
hereby further modified and amended by deleting the existing definition of "SBC
Agreement to Sublease" in its entirety by substituting the following in lieu
thereof:
"'SBC Agreement to Sublease' shall mean that certain Agreement
to Sublease dated August 25, 2000, among SBC Wireless (for itself and
on behalf of the Sublessor Entities referred to therein), Holdco and
STI, as amended by Amendment No. 1 thereto dated as of December 14,
2000, and as further amended by the SBC Amendment."
2. Amendment to Section 2.3. Section 2.3(f) of the Credit
Agreement, Applicable Margins for Base Rate Advances and Eurodollar Advances, is
hereby deleted in its entirety and the following substituted in lieu thereof:
"(f) Applicable Margins for Base Rate Advances and
Eurodollar Advances.
"(i) Advances Under the Revolving Commitment or of the
Tranche A Loans. With respect to any Advance under the Revolving
Commitment, or any Advance of the Tranche A Loans, the Applicable
Margin shall be (A) on and after the Agreement Date to the First
Amendment Date, (x) 2.75% with respect to any Eurodollar Advance and
(y) 1.50% with respect to any Base Rate Advance, (B) on and after the
First Amendment
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Date to and including the Adjustment Date, (x) 3.25% with respect to
any Eurodollar Advance and (y) 2.00% with respect to any Base Rate
Advance, and (C) after the Adjustment Date, the interest rate margin
based upon the Borrower Leverage Ratio for the most recent fiscal
quarter end, effective as of the second (2nd) Business Day after the
financial statements referred to in Section 7.1 hereof are delivered by
the Borrower to the Administrative Agent for the fiscal quarter of the
Borrower most recently ended, expressed as a per annum rate of interest
as follows:
Then the Base Rate Advance Then the Eurodollar Advance
"If the Borrower Leverage Ratio is: Applicable Margin shall be: Applicable Margin shall be:
----------------------------------- --------------------------- ---------------------------
Greater than or equal to 5.00 to 1.00 2.00% 3.25%
Greater than or equal 4.50 to 1.00 1.75% 3.00%
but less than 5.00 to 1.00
Greater than or equal to 4.00 to 1.00 1.50% 2.75%
but less than 4.50 to 1.00
Greater than or equal to 3.50 to 1.00 1.25% 2.50%
but less than 4.00 to 1.00
Less than 3.50 to 1.00 1.00% 2.25%
"In the event that the Borrower fails to timely provide (I) the
financial statements referred to above in accordance with the terms of
Section 7.1 hereof or (II) the Performance Certificate referred to in
Section 7.3 hereof, and without prejudice to any additional rights
under Section 2.3(d) or Section 10.2 hereof, no downward adjustment of
the Applicable Margin in effect for the preceding quarter shall occur
until the actual delivery of such statements, and from such failure and
until such delivery, the Applicable Margin shall be (x) 3.25% with
respect to each Eurodollar Advance, and (y) 2.00% with respect to each
Base Rate Advance.
"(ii) Advances of the Tranche B Loans. With respect to any
Advance of the Tranche B Loans, the Applicable Margin shall be (A)
4.00% per annum with respect to any Eurodollar Advance and (B) 2.75%
per annum with respect to any Base Rate Advance."
3. Amendments to Section 8.5.
(a) Section 8.5 of the Credit Agreement, Liquidation;
Merger; Acquisition or Disposition of Assets, is hereby modified and amended by
deleting clause (vi) in its entirety and by substituting the following in lieu
thereof:
"(vi) the Borrower and the Designated Subsidiaries (other
than TAS) may acquire and construct up to twenty (20) Towers and Tower
Sites without an anchor tenant under contract, so long as the aggregate
Investment for such Towers and Tower Sites is at all times less than
$3,000,000; provided, however, that (a) if the Borrower or the
applicable Designated Subsidiary shall enter into a binding contract
with an anchor tenant with
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respect to any such Tower or Tower Site, the book value of the
Investment of the Borrower or the applicable Designated Subsidiary in
such Tower or Tower Site shall be thereafter excluded from the
Investments subject to the $3,000,000 limitation provided for herein
and (b) the $3,000,000 limitation provided for herein shall not apply
to the Towers and Tower Sites identified on Schedule 8.5(vi) attached
hereto which Towers and Tower Sites have been acquired and constructed
by the Borrower in anticipation of entering into a lease agreement with
Nextel with respect thereto;"
(b) Section 8.5 of the Credit Agreement, Liquidation;
Merger; Acquisition or Disposition of Assets, is hereby further modified and
amended by deleting clause (vii) in its entirety and by substituting the
following in lieu thereof:
"(vii) so long as no Default or Event of Default then exists
or would be caused thereby, subject to compliance with Sections 6.9 and
6.15 hereof, the Borrower may consummate each of (A) the SBC
Transaction (provided that, notwithstanding anything to the contrary
contained in this Agreement or in any of the SBC Lease Documents,
neither the Borrower nor any of its Subsidiaries may lease or sublease
from SBC the 950 SBC Towers which are the subject of the SBC Amendment
(the "Deferred SBC Towers") at any time prior to January 1, 2003,
except that, so long as the Borrower shall provide to the Lead
Arrangers revised Projections assuming consummation of any such
transaction (or series of related transactions) and demonstrating pro
forma compliance with the Financial Covenants through December 31,
2004, the Borrower and its Subsidiaries may lease or sublease from SBC
up to 350 of the Deferred SBC Towers during the period prior to January
1, 2003) and (B) the Airtouch Acquisition;"
4. Amendment to Section 9.1. Section 9.1 of the Credit Agreement,
Borrower Leverage Ratio, is hereby modified and amended by deleting the table
contained therein and by substituting the following in lieu thereof:
"Quarters Ending: Ratio:
----------------------------------------- ------------
Agreement Date through June 30, 2002 6.00 to 1.00
July 1, 2002 through December 31, 2002 5.75 to 1.00
January 1, 2003 through June 30, 2003 5.50 to 1.00
July 1, 2003 through September 30, 2003 5.25 to 1.00
October 1, 2003 through December 31, 2003 5.00 to 1.00
January 1, 2004 through June 30, 2004 4.50 to 1.00
July 1, 2004 through December 31, 2004 4.00 to 1.00
January 1, 2005 and thereafter 3.50 to 1.00"
5. Amendment to Section 9.3. Section 9.3 of the Credit Agreement,
Total Interest Coverage Ratio, is hereby modified and amended by deleting the
table contained therein and by substituting the following in lieu thereof:
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"Quarters Ending: Ratio:
----------------------------------------- ------------
Agreement Date through June 30, 2002 1.15 to 1.00
July 1, 2002 through June 30, 2003 1.25 to 1.00
July 1, 2003 through December 31, 2003 1.50 to 1.00
January 1, 2004 through December 31, 2004 1.65 to 1.00
January 1, 2005 through June 30, 2006 1.75 to 1.00
July 1, 2006 and thereafter 2.00 to 1.00"
6. Consent. To the extent required by Section 8.4 of the Credit
Agreement and notwithstanding anything to the contrary contained in the Credit
Agreement or any of the other Loan Documents, the Administrative Agent and the
Credit Parties (including, without limitation, the Lead Arrangers) hereby
consent to (i) the execution and delivery by STI of the SBC Amendment, which
shall be in form and substance satisfactory to the Lead Arrangers, and the
amendments to the SBC Lease Documents contained therein and (ii) the payment by
STI of an additional amount not to exceed $35,000,000 in consideration for SBC's
agreement to defer the lease and sublease of up to 950 SBC Towers pursuant to
the SBC Amendment; provided that (a) the SBC Amendment shall provide for the
deferral of the closings with respect to not less than 950 SBC Towers subject to
the amendments to Section 8.5(vii) set forth above and (b) the average cash
outlay per tower with respect to each of such SBC Towers must be approximately
$250,000.
7. Waiver. The Administrative Agent and the Credit Parties hereby
waive (a) compliance by the Borrower with Section 8.5(vi) in connection with the
Borrower's $50,000,000 investment in the Spec Towers during the period from
September 30, 2001 through the Effective Date, and (b) their rights and remedies
under the Credit Agreement and the other Loan Documents which may arise as a
result thereof. The waivers contained in the foregoing sentence shall not waive
any other requirement or hinder, restrict or otherwise modify the rights and
remedies of the Administrative Agent and the Credit Parties following the
occurrence of any present or future Default or Event of Default under the Credit
Agreement or any other Loan Document.
8. No Other Amendments, Consents and Waivers. Except for the
amendments, consents and waivers set forth above, the text of the Credit
Agreement and the other Loan Documents shall remain unchanged and in full force
and effect, and the Administrative Agent and the Credit Parties hereby reserve
the right to require strict compliance with the terms of the Credit Agreement
and the other Loan Documents in the future.
9. Amendment Fee. The Borrower hereby agrees to pay, upon the
Effective Date (as defined in Section 10 below), to each Lender delivering its
consent to this Amendment on or before the Effective Date, an amendment fee (the
"Amendment Fee") in the amount of 25 basis points on the amount of such Lender's
Revolving Commitment and Term Loans as of the
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Effective Date. The Amendment Fee shall be fully earned when due and
non-refundable when paid.
10. Conditions to Effectiveness. This Amendment shall be effective
as of the date first written above (the "Effective Date") upon the following:
(a) The Administrative Agent's receipt of a counterpart
hereof duly executed by the Borrower and Holdco, and by the Majority Lenders;
(b) All of the representations and warranties of Holdco
and the Borrower set forth in the Credit Agreement and this Amendment, other
than those that are expressly made as of a specific date, are true and correct
in all material respects with the same effect as though such representations and
warranties had been made on and as of the Effective Date as though made on and
as of such date;
(c) Each Lender delivering its consent to this Amendment
on or before the Effective Date shall have received payment of its Amendment
Fee;
(d) The Credit Parties acknowledge receipt of the
Borrower's revised Projections dated October 31, 2001; provided, however, that
in the event that the Lead Arrangers shall require, in their sole discretion,
further updated Projections, the receipt of such updated Projections,
satisfactory to the Lead Arrangers, shall be a condition precedent to the
Effective Date of this Amendment; and
(e) With respect to the amendments set forth above in
Sections 1, 3(b), 4 and 5 of this Amendment and the consent set forth above in
Section 6 of this Amendment, (i) the Lead Arrangers shall have received revised
Projections, satisfactory to each of them, assuming consummation of such
amendments and the transactions contemplated by the SBC Amendment and (ii) the
Credit Parties shall have received a copy of the fully executed SBC Amendment,
which shall be in form and substance reasonably satisfactory to the Lead
Arrangers and their counsel, on or before December 31, 2001.
11. Termination of Effectiveness. In the event that the Borrower
shall not have entered into the SBC Amendment on or before December 31, 2001,
the amendments set forth above in Sections 1, 3(b), 4 and 5 of this Amendment
and the consent set forth above in Section 6 of this Amendment shall cease to be
of any further force and effect and the text of the Credit Agreement with
respect to the Sections affected by such amendments shall continue to remain as
set forth prior to the Effective Date.
12. Representations and Warranties. Each of the Borrower and
Holdco, for itself and on behalf of each of its Subsidiaries, agrees, represents
and warrants in favor of the Administrative Agent and the Credit Parties that:
(a) This Amendment has been executed and delivered by
duly authorized representatives of the Borrower and Holdco, and the Credit
Agreement, as modified and amended by this Amendment, constitutes a legal, valid
and binding obligation of the Borrower and Holdco and is enforceable against the
Borrower
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and Holdco in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by the application of general equitable principles;
(b) After giving effect to this Amendment, no Default or
Event of Default with respect to the Borrower or Holdco has occurred and is
continuing; and
(c) As of the date hereof, (i) the property of the
Borrower, at a fair valuation on a going concern basis, will exceed its debt;
(ii) the capital of the Borrower will not be unreasonably small to conduct its
business; and (iii) the Borrower will not have incurred debts, or have intended
to incur debts, beyond its ability to pay such debts as they mature.
13. Effect on the Credit Agreement. Except as specifically
provided herein, the Credit Agreement shall remain in full force and effect, and
is hereby ratified, reaffirmed and confirmed. This Amendment shall be deemed to
be a Loan Document for all purposes.
14. Counterparts. This Amendment may be executed in any number of
separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
15. Law of Contract. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
BORROWER: SPECTRASITE COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
-------------------------------
Title: Chief Financial Officer
-------------------------------
Attest: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------
Title:
------------------------------
HOLDCO: SPECTRASITE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
------------------------------
Title: Chief Financial Officer
------------------------------
Attest: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
------------------------------
Title:
------------------------------
ADMINISTRATIVE CANADIAN IMPERIAL BANK OF
AGENT: COMMERCE
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Director, CIBC World
--------------------------------------
Markets Corp. as Agent
--------------------------------------
ARRANGERS: CIBC WORLD MARKETS CORP.
(F/K/A CIBC XXXXXXXXXXX CORP.)
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Director, CIBC World
--------------------------------------
Markets Corp. as Agent
--------------------------------------
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------------
Title: Vice President
--------------------------------------
COLLATERAL AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------
Title: Executive Director, CIBC World
--------------------------------------
Markets Corp. as Agent
--------------------------------------
SYNDICATION AGENT: CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------------
Title: Vice President
--------------------------------------
MANAGING AGENTS: BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
--------------------------------------
Title: Director
--------------------------------------
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
---------------------------------------
Title: Authorized Signatory
--------------------------------------
FLEET NATIONAL BANK
By:
-----------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------------
Title: Director
--------------------------------------
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
CO-AGENT: CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxxx XxXxxxxx
-----------------------------------------
Name: Xxxxxxx XxXxxxxx
--------------------------------------
Title: Authorized Signature
--------------------------------------
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxx X. Xxxxxx
-----------------------------------------
Name: Xxx X. Xxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
UNION BANK OF CALIFORNIA, N.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
