EXHIBIT 10.2
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
$250,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
PINNACLE TOWERS INC.
AND
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE LENDER
AND
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
AS SYNDICATION AGENT
AND
LENDERS
DATED AS OF FEBRUARY 26, 1998
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PINNACLE TOWERS INC.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS
1.01. Definitions....................................... 2
1.02. Accounting and Other Terms........................ 25
ARTICLE II. AMOUNTS AND TERMS OF ADVANCES
2.01. The Advances...................................... 25
2.02. Making Advances................................... 25
2.03. Evidence of Debt for Borrowed Money............... 27
2.04. Optional Prepayments.............................. 27
2.05. Mandatory Prepayments............................. 28
2.06. Repayment......................................... 29
2.07. Interest.......................................... 30
2.08. Default Interest.................................. 31
2.09. Continuation and Conversion Elections............. 31
2.10. Fees.............................................. 32
2.11. Reduction of Available Commitment................. 33
2.12. Funding Losses.................................... 33
2.13. Computations and Manner of Payments............... 33
2.14. Yield Protection; Changed Circumstances........... 34
2.15. Use of Proceeds................................... 37
2.16. Collateral and Collateral Call.................... 37
2.17. Replacement of a Lender........................... 38
2.18. Conditions Precedent to the Increase of the
Available Commitment.............................. 38
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit..................... 40
3.02. Letters of Credit Fee............................. 40
3.03. Reimbursement Obligations......................... 41
3.04. Lenders' Obligations.............................. 42
3.05. Administrative Lender's Obligations............... 43
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to Closing and the Initial
Advance........................................... 43
4.02. Conditions Precedent to All Advances and Letters
of Credit......................................... 45
4.03. Conditions Precedent to Advances for Permitted
Acquisitions...................................... 46
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties.................... 46
5.02. Survival of Representations and Warranties........ 54
i
ARTICLE VI. GENERAL COVENANTS
6.01. Preservation of Existence and Similar Matters.... 55
6.02. Business; Compliance with Applicable Law and
Material Agreements.............................. 55
6.03. Maintenance of Properties........................ 55
6.04. Accounting Methods and Financial Records......... 55
6.05. Insurance........................................ 55
6.06. Payment of Taxes and Claims...................... 56
6.07. Visits and Inspections........................... 56
6.08. Payment of Debt for Borrowed Money............... 56
6.09. Use of Proceeds.................................. 56
6.10. Indemnity........................................ 56
6.11. Environmental Law Compliance..................... 57
6.12. Interest Rate Protection Agreements.............. 58
6.13. Issuance and Pledge of Capital Stock of the
Borrower......................................... 58
6.14. Continued Status as a Real Estate Investment
Trust; Prohibited Transactions................... 58
6.15. Tenant Leases, Ground Leases and Fee Owned
Property......................................... 59
6.16. Acquisitions, Generally.......................... 60
ARTICLE VII. INFORMATION COVENANTS
7.01. Quarterly Financial Statements and Information... 60
7.02. Annual Financial Statements and Information;
Certificate of No Default........................ 61
7.03. Compliance Certificates.......................... 61
7.04. Copies of Other Reports and Notices.............. 61
7.05. Notice of Litigation, Default and Other Matters.. 63
7.06. ERISA Reporting Requirements..................... 63
7.07. Fee Owned Property, Ground Leases, Tenant
Leases........................................... 64
ARTICLE VIII. NEGATIVE COVENANTS
8.01. Financial Covenants.............................. 65
8.02. Debt for Borrowed Money.......................... 68
8.03. Liens............................................ 69
8.04. Investments...................................... 69
8.05. Amendment and Waiver............................. 70
8.06. Liquidation, Disposition or Acquisition of
Assets, Merger, New Subsidiaries................. 71
8.07. Guaranties; Contingent Liabilities............... 72
8.08. Restricted Payments.............................. 72
8.09. Affiliate Transactions........................... 74
8.10. Compliance with ERISA............................ 74
8.11. Capital Stock.................................... 74
8.12. Sale and Leaseback............................... 75
8.13. Sale or Discount of Receivables.................. 75
ii
ARTICLE IX. EVENTS OF DEFAULT
9.01. Events of Default................................ 75
9.02. Remedies upon Default............................ 79
9.03. Cumulative Rights................................ 79
9.04. Waivers.......................................... 79
9.05. Performance by Administrative Lender or any
Lender........................................... 80
9.06. Expenditures..................................... 80
9.07. Control.......................................... 80
ARTICLE X. THE ADMINISTRATIVE LENDER
10.01. Authorization and Action........................ 80
10.02. Administrative Lender's Reliance, Etc........... 81
10.03. NationsBank of Texas, National Association and
Affiliates...................................... 81
10.04. Lender Credit Decision.......................... 81
10.05. Indemnification by Lenders...................... 82
10.06. Successor Administrative Lender................. 82
ARTICLE XI. MISCELLANEOUS
11.01. Amendments and Waivers.......................... 83
11.02. Notices......................................... 83
11.03. Parties in Interest............................. 85
11.04. Assignments and Participations.................. 85
11.05. Sharing of Payments............................. 86
11.06. Right of Set-off................................ 86
11.07. Costs, Expenses, and Taxes...................... 87
11.08. Rate Provision.................................. 88
11.09. Severability.................................... 88
11.10. Exceptions to Covenants......................... 88
11.11. Counterparts.................................... 89
11.12. GOVERNING LAW; WAIVER OF JURY TRIAL............. 89
11.13. ENTIRE AGREEMENT................................ 89
TABLE OF SCHEDULES AND EXHIBITS
SCHEDULES
---------
Schedule 2.16 - Items required with respect to each
Ground Lease and Each Fee Owned Real
Property of the Borrower and its
Subsidiaries
Schedule 5.01(a) - Jurisdictions of Qualification,
Ownership and Capital Structure -
Borrower
Schedule 5.01(f) - FAA Non-Compliance as of the Closing
Date
Schedule 5.01(h) - Existing Litigation
iii
Schedule 5.01(w) - Tenant Leases in existence on the
Closing Date
Schedule 5.01(x) - Ground Leases in existence on the
Closing Date
Schedule 5.01(y) - Owned Real Property in existence on
the Closing Date
Schedule 8.02 - Existing Debt and Liabilities
Schedule 8.03 - Existing Liens
Schedule 8.04 - Existing Investments
Schedule 8.09 - Existing Affiliate Transactions
Schedule 11.02 - Lender Addresses
EXHIBITS
--------
Exhibit A - Form of Note
Exhibit B - Form of Security Agreement (Borrower)
Exhibit C - Form of Compliance Certificate
Exhibit D - Form of Borrowing Notice
Exhibit E - Form of Conversion/Continuation Notice
Exhibit F - Form of Assignment and Acceptance
Exhibit G - Form of Guaranty of Subsidiaries
Exhibit H - Form of Security Agreement (Subsidiary)
Exhibit I - Form of Subordination Agreement
Exhibit J - Form of Borrower Pledge Agreement
Exhibit K - Form of Certain Ground Lease Provisions
Exhibit L - Form of Guaranty of Parent
Exhibit M - Form of Parent Pledge Agreement
Exhibit N - Form of Capital Contribution Agreement
Exhibit O - Form of Estoppel and Attornment Language
iv
$250,000,000
--------------------------------------------------------------------------------
PINNACLE TOWERS INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT is dated as of February
26, 1998, among Pinnacle Towers Inc., a Delaware corporation (the "Borrower"),
the Lenders (as defined below), NationsBank of Texas, National Association, as a
Lender and Administrative Lender (the "Administrative Lender"), and Xxxxxxx
Sachs Credit Partners L.P., as Syndication Agent.
BACKGROUND.
WHEREAS, Borrower entered into that certain Credit Agreement with
Administrative Lender, dated as of September 1, 1995 (the "Original Credit
Agreement") which provided for (a) a reducing revolving line of credit/letter of
credit facility in the combined maximum aggregate amount of $5,000,000 and (b) a
revolver/term loan in the maximum aggregate amount of $20,000,000.
WHEREAS, Borrower and Administrative Lender agreed to restructure, extend,
renew and restate such indebtedness under the Original Credit Agreement to
provide for one revolver/term loan in the amount of $100,000,000, to add certain
lenders as parties thereto and to make certain other agreed to changes, pursuant
to a Credit Agreement, dated as of September 10, 1996 (the "Restated Credit
Agreement"), between the Borrower, the Administrative Lender and other lenders
from time to time party to the Credit Agreement.
WHEREAS, Borrower and Administrative Lender agreed to restructure, extend,
renew and restate such indebtedness under the Restated Credit Agreement to
provide for one revolver/term loan in the amount of $100,000,000, which may be
increased to $175,000,000 pursuant to a First Amended and Restated Credit
Agreement, dated as of June 11, 1997 (the "First Restated Credit Agreement"),
between the Borrower, the Administrative Lender and other lenders from time to
time party to the Credit Agreement.
WHEREAS, Borrower and Administrative Lender have further agreed to
restructure, increase, extend, renew and restate such indebtedness under the
First Restated Credit Agreement as set forth herein to provide for one
revolver/term loan in the initial amount of $200,000,000 which may be increased
to $250,000,000 (as provided herein), to add certain lenders as parties thereto
and to make certain other agreed to changes.
AGREEMENT.
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
hereto agree as follows:
All obligations under the First Restated Credit Agreement, as modified
herein, shall after the Closing Date, be evidenced by the Notes, this Agreement,
and the Loan Papers, and shall be secured by (except as expressly provided
herein or in any other Loan Paper), among other things, the original collateral
as granted Borrower pursuant to the Loan Papers executed and delivered pursuant
to the Original Credit Agreement, the Restated Credit Agreement, and the First
Restated Credit Agreement, as amended from time to time.
ARTICLE I. DEFINITIONS
1.01. Definitions. As used in this Agreement, the following terms have
the respective meanings indicated below (such meanings to be applicable equally
to both the singular and plural forms of such terms):
"ABRY" means ABRY Broadcast Partners II, L.P., a Delaware limited
partnership.
"Advance" means an advance made by a Lender to the Borrower pursuant to
Section 2.01 hereof.
"Affiliate" means a Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled By or is Under Common Control with
another Person.
"Administrative Lender" means NationsBank of Texas, National Association,
in its capacity as Administrative Lender hereunder, or any successor
Administrative Lender appointed pursuant to Section 10.06 hereof.
"Aggregate Commitment" means, from time to time, the sum of the Available
Commitment and the Unavailable Commitment, as reduced from time to time.
"Agreement" means this Credit Agreement, as hereafter amended, modified,
increased, extended, restated or supplemented from time to time.
"Annualized EBITDA" means, (a) with respect to Compliance Certificates
delivered in connection with Section 7.03 hereof, the product of (i) EBITDA for
the Parent, the Borrower and its Subsidiaries on a consolidated basis, for the
most recently completed month immediately preceding the date of determination
times (ii) twelve, and (b) with respect to pro-forma Compliance Certificates
delivered in connection with Permitted Acquisitions delivered pursuant to
Section 6.16 hereof, the product of (i) EBITDA for the Parent, the Borrower and
its Subsidiaries on a
2
consolidated basis, for the most recently completed month immediately preceding
the date of determination with respect to which the Borrower has financial
statements prepared, times (ii) twelve.
"Applicable Law" means (a) in respect of any Person, all provisions of Laws
applicable to such Person, and all orders and decrees of all courts and
arbitrators in proceedings or actions to which the Person in question is a party
and (b) in respect of contracts made or performed in the State of Texas,
"Applicable Law" shall also mean the laws of the United States of America,
including, without limiting the foregoing, 12 USC Sections 85 and 86, as amended
to the date hereof and as the same may be amended at any time and from time to
time hereafter, and any other statute of the United States of America now or at
any time hereafter prescribing the maximum rates of interest on loans and
extensions of credit, and the laws of the State of Texas, including, without
limitations, Articles 5069-1H, Title 79, Revised Civil Statutes of Texas, 1925,
as amended ("Art. 1H"), if applicable, and if Art. 1H is not applicable, Article
5069-1D, Title 79, Revised Civil Statutes of Texas, 1925 ("Art. 1D"), as
amended, and any other statute of the State of Texas now or at any time
hereafter prescribing maximum rates of interest on loans and extensions of
credit, provided however, that pursuant to Article 5069-15.10(b), Title 79,
Revised Civil Statutes of Texas, 1925, as amended, the Borrower agrees that the
provisions of Chapter 15, Title 79, Revised Civil Statutes of Texas, 1925, as
amended, shall not apply to the Advances hereunder.
"Applicable Margin" means, (a) with respect to LIBOR Advances, 2.750% per
annum, and (b) with respect to Base Advances, 1.750% per annum provided that, if
there exists no Default or Event of Default, then the Applicable Margin will be
the following per annum percentages applicable in the following situations:
Base Advance LIBOR Advance
Applicability Percentage
------------- ----------
Percentage
----------
(i) If the 1.750% 2.750%
Leverage Ratio is equal to or
greater than 7.00 to 1.00
(ii) If the 1.500% 2.500%
Leverage Ratio is equal to or
greater than 6.50 to 1.00
but is less than 7.00 to 1.00
3
(iii) If the 1.375% 2.375%
Leverage Ratio is equal to or
greater than 6.00 to 1.00
but is less than 6.50 to 1.00
(iv) If the 1.125% 2.125%
Leverage Ratio is equal to or
greater than 5.50 to 1.00
but is less than 6.00 to 1.00
(v) If the 1.000% 2.000%
Leverage Ratio is equal to or
greater than 5.00 to 1.00
but is less than
5.50 to 1.00
(vi) If the .750% 1.750%
Leverage Ratio is equal to or
greater than 4.50 to 1.00
but is less than
5.00 to 1.00
(vii) If the .500% 1.500%
Leverage Ratio is equal to or
greater than 4.00 to 1.00
but is less than
4.50 to 1.00
(viii) If the 0.250% 1.250%
Leverage Ratio is less
than 4.00 to 1.00
The Applicable Margin payable by the Borrower shall be subject to reduction or
increase, as applicable and as set forth in the table above, on a quarterly
basis according to the performance of the Parent, Borrower and Subsidiaries of
Borrower as tested by the Leverage Ratio, and shall be subject to further
increase as set forth in Section 6.15(c) hereof. Except as set forth in the
last sentence hereof, any such increase or reduction in the Applicable Margin
provided for herein shall be effective three Business Days after receipt by
Administrative Lender of the applicable financial statements and corresponding
Compliance Certificate. If financial statements and a Compliance Certificate of
the Borrower setting forth the Leverage Ratio are not received by the
Administrative Lender by the date required pursuant to Article VII hereof, the
Applicable Margin shall be determined as if the Leverage Ratio exceeds 7.00 to
1.00 until such time as such financial statements and Compliance Certificate are
received. For the final quarter of any fiscal year of the Borrower, the
Borrower may provide the unaudited financial statements of the Borrower, subject
only to year-end adjustments, for the purpose of adjusting the Applicable
Margin.
4
"Application" means any stand-by letter of credit application delivered to
Administrative Lender for or in connection with any stand-by Letter of Credit
pursuant to Article III hereof, in Administrative Lender's standard form for
stand-by letters of credit.
"Art. 1.04" has the meaning specified in the definition of "Applicable
Law".
"Art. 1D" has the meaning specified in the definition herein of "Applicable
Law".
"Art. 1H" has the meaning specified in the definition herein of "Applicable
Law".
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an Eligible Assignee, and accepted by Administrative Lender, in
the form of Exhibit F hereto.
"Auditor" means Price Waterhouse L.L.P., or other independent certified
public accountants selected by the Borrower and acceptable to Administrative
Lender.
"Authorized Officer" means, with respect to the Borrower and its
Subsidiaries, the President, Chief Executive Officer, Chief Financial Officer or
the Controller of the Borrower.
"Available Commitment" means $200,000,000, as the same may be increased
prior to the Conversion Date in accordance with the terms of Section 2.18
hereof, and as the same may be reduced from time to time or terminated pursuant
to Sections 2.04, 2.11 or 9.02 hereof.
"Bank Affiliate" means the holding company of any Lender, or any wholly-
owned direct or indirect subsidiary of such holding company or of such Lender.
"Base Advance" means an Advance bearing interest at the Base Rate.
"Base Rate" means a per annum interest rate equal to the lesser of (a) the
Highest Lawful Rate, and (b) the sum of the Applicable Margin plus the higher of
(i) a fluctuating rate per annum as shall be in effect from time to time
announced or published by NationsBank of Texas, National Association as its
prime rate, and which may not necessarily be the lowest interest rate charged by
NationsBank of Texas, National Association, and (ii) the Federal Funds Rate in
effect at such time plus .50%.
"Borrower Pledge Agreement" means the Pledge Agreement of even date
herewith, executed by the Borrower, granting a Lien on 100% of the Capital Stock
of each of the Borrower's Subsidiaries constituting Pledged Stock as security
for the Obligations,
5
substantially in the form of Exhibit J hereto, as such agreement may be amended,
modified, renewed or extended from time to time.
"Borrowing" means a borrowing of the same Type made on the same day.
"Borrowing Notice" has the meaning set forth in Section 2.02(a) hereof.
"Business Day" means a day of the year on which banks are not required or
authorized to close in Dallas, Texas or Sarasota, Florida, or, if with respect
to any notice, payment or calculation related to a LIBOR Advance, in New York,
New York, Dallas, Texas, Sarasota, Florida or London, England.
"Capital Contribution Agreement" means that certain Capital Contribution
Agreement, dated as of ____________, 1998, among ABRY, the Parent, the Borrower
and the Administrative Lender on behalf of Lenders, substantially in the form of
Exhibit N hereto.
"Capital Expenditures" means capital expenditures, as defined in accordance
with GAAP.
"Capital Leases" means capital leases and subleases, as defined in
accordance with GAAP.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
of any Person that is a corporation and each class of partnership interests
(including without limitation, general, limited and preference units) in any
Person that is a partnership.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and any
reference to any provision of the Code shall include all successor provisions
thereto.
"Collateral" has the meaning ascribed thereto in Section 2.16 hereof.
"Commitment Fee" means the fee described in Section 2.10(b).
"Communications Act" means, collectively, the Communications Act of 1934
and the rules and regulations promulgated thereunder, as from time to time in
effect.
"Compliance Certificate" means a certificate of an Authorized Officer in
the form of Exhibit C hereto, (a) certifying that such individual has no
knowledge that a Default or Event of Default has occurred and is continuing, or
if a Default or Event of Default has
6
occurred and is continuing, a statement as to the nature thereof and the action
being taken or proposed to be taken with respect thereto, (b) setting forth
detailed calculations with respect to the covenants described in Section 8.01
hereof and (c) certifying to the appropriate Applicable Margin.
"Consequential Loss" with respect to (a) the Borrower's payment of all or
any portion of the then-outstanding principal amount of a LIBOR Advance on a day
other than the last day of the related Interest Period, including, without
limitation, payments made as a result of the acceleration of the maturity of a
Note, (b) subject to Administrative Lenders' prior consent, a LIBOR Advance made
on a date other than the date on which the Advance is to be made according to
Section 2.02(a) or Section 2.09 hereof to the extent such Advance is made on
such other date at the request of the Borrower, or (c) any of the circumstances
specified in Section 2.04 hereof on which a Consequential Loss may be incurred,
means any loss, cost or expense incurred by any Lender as a result of the timing
of the payment or Advance or in liquidating, redepositing, redeploying or
reinvesting the principal amount so paid or affected by the timing of the
Advance or the circumstances described in Section 2.04 hereof, which amount
shall be the sum of (i) the interest that, but for the payment or timing of
Advance, such Lender would have earned in respect of that principal amount,
reduced, if such Lender is able to redeposit, redeploy, or reinvest the
principal amount, by the interest earned by such Lender as a result of
redepositing, redeploying or reinvesting the principal amount plus (ii) any
expense or penalty incurred by such Lender by reason of liquidating,
redepositing, redeploying or reinvesting the principal amount. Each
determination by each Lender of any Consequential Loss is, in the absence of
manifest error, presumptive evidence of the validity of such claim.
"Contingent Liability" means, as to any Person, any obligation, contingent
or otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt or obligation of any other Person in any manner, whether
directly or indirectly, including without limitation any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt, (b)
to purchase Property or services for the purpose of assuring the owner of such
Debt of its payment, or (c) to maintain the solvency, working capital, equity,
cash flow, fixed charge or other coverage ratio, or any other financial
condition of the primary obligor so as to enable the primary obligor to pay any
Debt or to comply with any agreement relating to any Debt or obligation, but
excluding endorsement of checks, drafts and other instruments in the ordinary
course of business.
7
"Continue," "Continuation" and "Continued" each refer to the continuation
pursuant to Section 2.09 hereof of a LIBOR Advance from one Interest Period to
the next Interest Period.
"Control" or "Controlled By" or "Under Common Control" mean possession,
direct or indirect, of power to direct or cause the direction of management or
policies (whether through ownership of voting securities, by contract or
otherwise); provided that, in any event (a) any Person which beneficially owns
--------
(i) 10% or more (in number of votes) of the securities having ordinary voting
power for the election of directors of a corporation shall be conclusively
presumed to control such corporation and (ii) 10% or more of the interest in
capital or profits of a partnership shall be conclusively presumed to control
such partnership, and (b) no Person shall be deemed to be an Affiliate of a
corporation solely by reason of his being an officer or director of such
corporation.
"Controlled Group" means, as to any Person, all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
which are under common control with such Person and which, together with such
Person, are treated as a single employer under Section 414(b), (c), (m) or (o)
of the Code.
"Conversion Date" means March 31, 2000.
"Conversion or Continuance Notice" has the meaning set forth in Section
2.09(b) hereof.
"Debt" means all obligations, contingent or otherwise, which in accordance
with GAAP are required to be classified on the balance sheet as liabilities, and
in any event including (without duplication) (a) Capital Leases, (b) Contingent
Liabilities that are required to be disclosed and quantified in notes to
consolidated financial statements in accordance with GAAP, and (c) liabilities
secured by any Lien on any Property, regardless of whether such secured
liability is with or without recourse.
"Debt for Borrowed Money" means, as to any Person, at any date, without
duplication, (a) all obligations of such Person for borrowed money, letters of
credit (or applications for letters of credit) or other similar instruments, (b)
all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, and, with respect to the Parent, the Borrower
and its Subsidiaries, including any accrued but unpaid Earn-Out Liability, but
excluding any unaccrued Earn-Out Liability, and (d) liabilities under Synthetic
Leases. For purposes of this Agreement, the principal amount of Debt of a Person
deemed to be outstanding under (a) Synthetic Leases to which a Person is a party
shall be the aggregate net present value (calculated at a discount rate of ten
percent of the
8
future Rental Obligations which will become due and payable by such Person over
the remaining term of all Synthetic Leases) to which such Person is a party.
"Debtor Relief Laws" means applicable bankruptcy, reorganization,
moratorium, or similar Laws, or principles of equity affecting the enforcement
of creditors' rights generally.
"Default" means any event specified in Section 9.01 hereof, whether or not
any requirement in connection with such event for the giving of notice, lapse of
time, or happening of any further condition has been satisfied.
"Distribution" means, as to any Person, (a) any declaration or payment of
any distribution or dividend (other than a stock dividend) on, or the making of
any pro rata distribution, loan, advance, or investment to or in any holder of,
any partnership interest or shares of capital stock or other equity interest of
such Person (or the establishment of a sinking fund or otherwise setting aside
of funds for any such purpose), or (b) any purchase, redemption, or other
acquisition or retirement for value of any shares of partnership interest or
capital stock or other equity interest of such Person (or the establishment of a
sinking fund or otherwise setting aside of funds for any such purpose).
"Earn-Out Liability" means, with respect to the Borrower and its
Subsidiaries, any unsecured contingent liability of the Borrower or any
Subsidiary of the Borrower incurred in connection with any Permitted
Acquisition, which such contingent liability (a) constitutes a portion of the
purchase price for the property acquired but is not an amount certain, (b) is
only payable based on the performance of the acquired property and in an amount
based only on the performance of the acquired property or (c) is not subject to
any acceleration right.
"EBITDA" means, for the Parent, the Borrower and its Subsidiaries, for any
period of determination, the sum of (a) net income for such period, plus (b)
amortization and depreciation for such period, plus (c) non-cash charges (minus
extraordinary non-cash income) and other extraordinary items for such period,
plus (d) Interest Expense for such period, including Rental Obligations under
Synthetic Leases (whether or not treated as Interest Expense), plus (e) General
and Administrative Expense for such period which are reimbursable by ABRY
pursuant to the terms of the Capital Contribution Agreement, plus (f) Income Tax
Expense for the Parent, the Borrower and its Subsidiaries for such period, plus
(g) an adjustment to net income for such period to account for the effect of
treating all acquisitions completed in such period as if such acquisitions had
been completed on the first day of such period, plus (h) an adjustment to net
income for such period to record an increase in revenue related to all new
leases executed in
9
the period as if such leases were effective as of the beginning of such period.
"Eligible Assignee" means any Bank Affiliate and any (a) commercial bank
organized under the laws of the United States, or any state thereof, and having
total assets in excess of $1,000,000,000; (b) savings and loan association or
savings bank organized under the laws of the United States, or any state
thereof, having total assets in excess of $1,000,000,000, and not in
receivership or conservatorship; (c) commercial bank organized under the laws of
any other country which is a member of the Organization for Economic Cooperation
and Development, or a political subdivision of any such country, and having
total assets in excess of $1,000,000,000, provided that such bank is acting
through a branch or agency located in the country in which it is organized or
another country which is described in this clause; and (d) central bank of any
country which is a member of the Organization for Economic Cooperation and
Development.
"Environmental Claim" means any written notice by any Tribunal alleging
liability for damage to the environment, or by any Person alleging liability for
personal injury (including sickness, disease or death), resulting from or based
upon (a) the presence or release (including sudden or non-sudden, accidental or
non-accidental, leaks or spills) of any Hazardous Material at, in or from
property, whether or not owned by the Parent, the Borrower or any of its
Subsidiaries, or (b) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. (S)9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. (S)1801 et seq.), the Resource
Conservation and Recovery Act (42 X.X.X (X)0000 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. (S)1251 et seq.), the Clean Air Act (42 U.S.C.
(S)7401 et seq.), the Toxic Substances Control Act (15 U.S.C. (S)2601 et seq.),
and the Occupational Safety and Health Act (29 U.S.C. (S)651 et seq.) ("OSHA"),
as such laws have been or hereafter may be amended or supplemented, and any and
all analogous future federal, or present or future state or local, Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations issued thereunder, as from time to time
in effect.
"ERISA Affiliate" means any Person that for purposes of Title IV of ERISA
is a member of the controlled group of the Borrower or any Obligor, or is under
common control with Borrower or any Obligor, within the meaning of Section
414(c) of the Code, and the regulations and rulings issued thereunder.
10
"ERISA Event" means (a) a reportable event, within the meaning of Section
4043 of ERISA, unless the 30-day notice requirement with respect thereto has
been waived by the PBGC, (b) the issuance by the administrator of any Plan of a
notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA), (c) the withdrawal by the Parent, the Borrower, any
Subsidiary of the Borrower, or an ERISA Affiliate from a Multiple Employer Plan
during a Plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA, (d) the failure by the Borrower, any Subsidiary of
the Borrower, or any ERISA Affiliate to make a payment to a Plan required under
Section 302 of ERISA, (e) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA, or (f) the
institution by the PBGC of proceedings to terminate a Plan, pursuant to Section
4042 of ERISA, or the occurrence of any event or condition that constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, a Plan.
"Estoppel and Attornment Language" means estoppel and attornment language
substantially in the form of Exhibit O hereto, or such other language as may be
approved in writing by Administrative Lender.
"Event of Default" means any of the events specified in Section 9.01 of
this Agreement, provided there has been satisfied any requirement in connection
therewith for the giving of notice, lapse of time, or happening of any further
condition.
"Excess Cash Flow" means, for any fiscal year of the Borrower, EBITDA for
such year minus the sum of (a)Income Tax Expense for such year, plus (b) Fixed
Charges for such year (excluding interest paid or payable, at the option of the
Borrower, in-kind), plus (c) (without duplication) all voluntary principal
prepayments on the Obligations pursuant to Section 2.04 hereof during such
period, plus (d) all General and Administrative Expense paid during such period.
"FAA" means the Federal Aviation Administration, or any governmental agency
succeeding to the functions thereof.
"FCC" means the Federal Communications Commission, or any governmental
agency succeeding to the functions thereof.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of Dallas, or, if such rate is not so
11
published for any day which is a Business Day, the average of the quotations for
such date on such transactions received by Administrative Lender from three
federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter, dated the Closing Date, between
the Borrower and the Administrative Lender, as such letter may be amended,
modified, substituted, replaced, or increased from time to time.
"Fixed Charges" means, for any specified period for the Parent, the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) required
or scheduled principal and interest payments with respect to Debt for Borrowed
Money for such period, excluding until the Conversion Date (x) required or
scheduled principal payments with respect to seller notes executed by the
Borrower in connection with Permitted Acquisitions to the extent permitted by
Section 8.02 hereof and (y) accrued or paid Earn-Out Liabilities, plus (b)
required or scheduled payments with respect to Capital Leases for such period,
plus (c) cash distributions made by the Borrower and the Parent in accordance
with the terms of Section 8.08(b)(iii) hereof during such period (without
duplication), plus (d) Capital Expenditures (other than those Capital
Expenditures for Permitted Acquisitions) for such period.
"First Restated Credit Agreement" has the meaning ascribed thereto in the
preamble hereof.
"GAAP" means generally accepted accounting principles applied on a
consistent basis. Application on a consistent basis shall mean that the
accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period, except for new
developments or statements promulgated by the Financial Accounting Standards
Board and other changes in accounting methods permitted by generally accepted
accounting principles.
"General and Administrative Expense" means, for any respective period,
Borrower's general and administrative expenses, as determined on a consolidated
basis in accordance with GAAP.
"Ground Lease" means those certain leases for real property or rooftops
entered into or acquired by the Borrower or any Subsidiary of the Borrower, for
the lease of real property (including rooftops) which constitute a Tower or upon
which is located a Tower (or which will constitute a Tower or upon which will be
located a Tower) for the purpose of maintaining Tenant Leases, including,
without limitation, those Ground Leases described on Schedule 5.01(x) hereto.
12
"Guarantors" means the Parent and each Subsidiary of the Borrower existing
on the Closing Date or formed or acquired from time to time thereafter.
"Guaranty" means a guaranty executed by any Person of the obligations of
another Person, or any agreement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes liable upon, the obligation of any other Person, or agrees
to maintain the net worth or working capital or other financial condition of any
other Person, or otherwise assures any creditor or such other Person against
loss, including, without limitation, any comfort letter, or take-or-pay contract
and shall include without limitation, the contingent liability of such Person in
connection with any application for a letter of credit.
"Hazardous Materials" means all materials subject to any Environmental Law,
including without limitation materials listed in 49 C.F.R. (S) 172.101,
Hazardous Substances, explosive or radioactive materials, hazardous or toxic
wastes or substances, petroleum or petroleum distillates, asbestos, or material
containing asbestos.
"Hazardous Substances" means hazardous waste as defined in the Clean Water
Act, 33 U.S.C. (S) 1251 et seq., the Comprehensive Environmental Response
Compensation and Liability Act as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. (S) 9601 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. (S) 6901 et seq., and the Toxic Substances Control Act,
15 U.S.C. (S) 2601 et seq.
"Highest Lawful Rate" means at the particular time in question the maximum
rate of interest which, under Applicable Law, Administrative Agent is then
permitted to charge on the Obligations. If the maximum rate of interest which,
under Applicable Law, such Lender is permitted to charge on the Obligations
shall change after the date hereof, the Highest Lawful Rate shall be
automatically increased or decreased, as the case may be, from time to time as
of the effective time of each change in the Highest Lawful Rate without notice
to the Borrower. For purposes of determining the Highest Lawful Rate under
Applicable Law, the applicable rate ceiling shall be (a) the indicated rate
ceiling described in and computed in accordance with the provisions of Art. lH;
or (b) either the annualized ceiling or quarterly ceiling computed pursuant to
.008 of Art. 1D; provided, however, that at any time the indicated rate ceiling,
-------- -------
the annualized ceiling or the quarterly ceiling, as applicable, shall be less
than 18% per annum or more than 24% per annum, the provisions of Sections
.009(a) and .009(b) of said Art. lD shall control for purposes of such
determination, as applicable.
"Income Tax Expense" means the aggregate Taxes accrued by the Parent, the
Borrower and its Subsidiaries for the relevant period
13
of determination, plus any cash Distributions made by the Borrower for the
purposes of satisfying any Tax liabilities in accordance with Section 8.08
hereof.
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities within the meaning of Section 4001(a)(18) of ERISA.
"Interest Expense" means, for the Parent, the Borrower and its Subsidiaries
on a consolidated basis, all interest expense and commitment fees incurred with
respect to Total Debt whether accrued or paid, all fees or expenses with respect
to letters of credit, bankers' acceptances or similar facilities, excluding
interest actually paid-in-kind.
"Interest Period" means, with respect to any LIBOR Advance, the period
beginning on the date the Advance is made or continued as a LIBOR Advance and
ending one, two, three or six months thereafter (as the Borrower shall select),
provided, however, that:
-------- -------
(a) the Borrower may not select any Interest Period that ends after
any principal repayment date unless, after giving effect to such selection,
the aggregate principal amount of LIBOR Advances having Interest Periods
that end on or prior to such principal repayment date, shall be at least
equal to the principal amount of Advances due and payable on and prior to
such date;
(b) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided,
--------
however, that if such extension would cause the last day of such Interest
-------
Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and
(c) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Interest Rate Protection Agreement" means an interest rate swap, cap,
collar or similar interest rate protection agreement between the Borrower and
any Lender.
"Investment" means any acquisition of all or substantially all of the
assets of any Person, or any direct or indirect purchase or other acquisition
of, or a beneficial interest in, capital stock or
14
other securities of any other Person, or any direct or indirect loan, advance
(other than (i) advances to employees for moving and travel expenses, (ii)
drawing accounts, (iii) deposits and advances made to contractors, vendors and
others in the ordinary course of business, (iv) xxxxxxx money deposits, good
faith deposits and similar deposits made in connection with Permitted
Acquisitions, and (v) similar expenditures in the ordinary course of business),
or capital contribution to or investment in any other Person, including without
limitation the incurrence or sufferance of Debt or accounts receivable of any
other Person that are not current assets or do not arise from sales to that
other Person in the ordinary course of business.
"Law" means any constitution, statute, law, ordinance, regulation, rule,
order, writ, injunction, or decree of any Tribunal.
"Lenders" means the lenders listed on the signature pages of this
Agreement, and each Eligible Assignee which hereafter becomes a party to this
Agreement pursuant to Section 11.04 hereof or pursuant to an amendment to this
Agreement.
"Lending Office" means, with respect to each Lender, its branch or
affiliate, (a) initially, the office of each Lender, branch or affiliate
identified as such on Schedule 11.02 hereto, and (b) subsequently, such other
office of each Lender, branch or affiliate as each Lender may designate to the
Borrower and Administrative Lender as the office from which the Advances of each
Lender will be made and maintained and for the account of which all payments of
principal and interest on the Advances and the Commitment Fee will thereafter be
made. Lenders may have more than one Lending Office for the purpose of making
Base Advances and LIBOR Advances.
"Letter of Credit Commitment" means an amount equal to (a) until February
15, 1998, the lesser of (i) $30,000,000 and (ii) the Available Commitment, and
(b) from and after February 15, 1998, the lesser of (i) $20,000,000 and (ii) the
Available Commitment.
"Letters of Credit" means the irrevocable standby letters of credit issued
by Administrative Lender under and pursuant to Article III hereof, as each may
be amended, modified, substituted, increased, replaced, renewed or extended from
time to time.
"Leverage Ratio" means the ratio, at the end of the accounting period with
respect to which such determination is made, of (a) the remainder of Total Debt
of the Parent, the Borrower and its Subsidiaries (exclusive of Debt owed to each
other), minus the sum of (x) Debt for Borrowed Money owed pursuant to the Term
Loan Agreement and (y) Subordinated Debt outstanding which is (i) permitted to
be incurred under Sections 8.02(h) and 8.02(j) hereof
15
and (ii) (without duplication) owed to ABRY, to (b) Annualized EBITDA.
"LIBOR Advance" means an Advance bearing interest at the LIBOR Rate.
"LIBOR Lending Office" means, with respect to each Lender, the office
designated as its "LIBOR Lending Office" below its name on Schedule 11.02
hereto, or such other office of Lender or any of its affiliates hereafter
designated by notice to the Borrower and Administrative Lender.
"LIBOR Rate" means a simple per annum interest rate equal to the lesser of
(a) the Highest Lawful Rate, and (b) sum of the Applicable Margin plus the LIBOR
Rate Basis. The LIBOR Rate shall, with respect to LIBOR Advances subject to
reserve or deposit requirements under any Law, be subject to premiums assessed
therefor by each Lender, which are payable directly to each Lender in an amount
sufficient to compensate such Lender for any increased cost or reduced rate of
return attributable to such reserve deposit requirements. Any calculation by a
Lender of such increased cost or reduced rate of return which is in reasonable
detail and submitted to Borrower shall, in the absence of manifest error, be
presumptive evidence of the validity of such claim. Once determined for any
LIBOR Advance, the LIBOR Rate shall remain unchanged during the applicable
Interest Period.
"LIBOR Rate Basis" means, for any LIBOR Advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period. If for any reason such
rate is not available, the term "LIBOR Rate Basis" shall mean, for any LIBOR
Advance for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period; provided,
--------
however, if more than one rate is specified on Reuters Screen LIBO Page, the
-------
applicable rate shall be the arithmetic mean of all such rates.
"License" means, as to the Parent, the Borrower, or any Subsidiary of the
Borrower, any license, permit, consent, certificate of need, authorization,
certification, accreditation, franchise, approval, or grant of rights by, or any
filing or registration with, any Tribunal or third Person (including without
limitation the FCC and the FAA) necessary for such Person to own, build,
maintain, or operate its business or Property.
16
"Lien" means any mortgage, pledge, security interest, encumbrance, lien, or
charge of any kind, including without limitation any agreement to give or not to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement or other similar form of public notice under the
Laws of any jurisdiction (except for the filing of a financing statement or
notice in connection with an (a) operating lease or (b) the true consignment of
goods to the Borrower or any Subsidiary of the Borrower as consignee).
"Litigation" means any proceeding, claim, lawsuit, arbitration, and/or
investigation conducted by or before any Tribunal or arbitrator, including
without limitation proceedings, claims, lawsuits, and/or investigations under or
pursuant to any environmental, occupational, safety and health, antitrust,
unfair competition, securities, Tax, or other Law, or under or pursuant to any
contract, agreement, or other instrument.
"Loan Papers" means this Agreement, the Notes, the Security Agreements,
Borrower Pledge Agreement, the Subsidiary Guaranties, the Parent Guaranty, the
Capital Contribution Agreement, the Parent Pledge Agreement, the Fee Letter,
financing statements, mortgages, deeds of trust, any Interest Rate Protection
Agreement and related documents entered into by the Borrower with any Lender or
Bank Affiliate, all Letters of Credit, all Applications and all other agreements
between the Borrower, the Parent or any Subsidiary of the Borrower and the
Administrative Lender related to any Letter of Credit, assignment of leases,
other fee letters, Assignment and Acceptances, post-closing letters, and all
other documents, instruments, agreements, or certificates executed or delivered
from time to time by any Person in connection with this Agreement or as security
for the Obligations hereunder, granting Collateral or otherwise, as each such
agreement may be amended, modified, substituted, replaced or extended from time
to time.
"Majority Lenders" means any combination of Lenders having at least 66.67%
of the aggregate amount of outstanding Advances hereunder, provided, however,
-------- -------
that if no Advances are outstanding, such term means any combination of Lenders
having Specified Percentages equal to at least 66.67%.
"Material Adverse Change" means any circumstance or event that is or would
reasonably be expected to (a) be material and adverse to the financial
condition, business operations, prospects, or Properties of the Parent, the
Borrower and its Subsidiaries on a consolidated basis, (b) materially and
adversely affect the validity or enforceability of (i) any Note, (ii) this
Agreement or (iii) any material Loan Paper or Loan Papers which in the aggregate
are material, or (c) cause a Default or Event of Default.
17
"Maturity Date" means December 31, 2005, or such earlier date on which the
total amount of outstanding Obligations are due and payable (including, without
limitation, whether by acceleration, scheduled reduction of the Available
Commitment to zero, or mandatory or voluntary commitment reduction of the
Available Commitment to zero).
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, a Lender is permitted to charge on the Obligations.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower, any Subsidiary of the Borrower, or
any ERISA Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an obligation
to make contributions, such plan being maintained pursuant to one or more
collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower, any Subsidiary of the Borrower, or any ERISA Affiliate and at least
one Person other than the Borrower, any Subsidiary of the Borrower, and any
ERISA Affiliate, or (b) was so maintained and in respect of which the Borrower,
any Subsidiary of the Borrower, or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were to
be terminated.
"Net Proceeds" means the gross cash proceeds received by the Parent, the
Borrower or any Subsidiary of the Borrower in connection with or as a result of
(a) any asset sale not in the ordinary course of business, minus (so long as
each of the following are estimated in good faith by the management of the
Borrower and certified to the Lenders in reasonable detail by an Authorized
Officer) (i) distributions to be made, if any, by the Borrower to the Parent and
by the Parent to the Shareholders, each as permitted by Section 8.08 hereof,
plus to the extent the Borrower or such Subsidiary has any actual Tax liability,
actual Taxes payable with respect to such asset sale in an amount equal to the
Tax liability of the Parent, the Borrower or any Subsidiary of the Borrower in
respect of such sale (taking into account the distribution to the Parent and by
the Parent to the Shareholders, and all Tax benefits of each of the parties),
(ii) reasonable and customary transaction costs payable by the Parent, the
Borrower or any Subsidiary of the Borrower related to such sale and (iii) Debt
secured by the assets sold that is immediately repaid as a consequence of such
sale, and (b) any additional equity or permitted Debt for Borrowed Money, except
such Debt for Borrowed Money that is specifically permitted to be incurred under
the terms of Section 8.02 hereof, minus (so long as it is estimated in good
faith by the management of the Borrower or such Subsidiary and
18
certified to the Lenders in reasonable detail by an Authorized Officer),
reasonable and customary transaction costs (including reasonable and customary
broker's fees), payable by the Parent, the Borrower or any Subsidiary of the
Borrower related to such transaction.
"Non-Conforming Ground Leases" means those Ground Leases with respect to
which any item required by Schedule 2.16 hereof or any provision set forth in
the Estoppel and Attornment Language in substantially similar form to the
Estoppel and Attornment Language is not delivered to the Administrative Lender
in form and substance satisfactory to the Administrative Lender within (a) 90
days after the Closing Date, for all Ground Leases listed on Schedule 5.01(x)
hereto, and (b) within 90 days after the date of any acquisition or creation of
any Ground Lease for all Ground Leases not listed on Schedule 5.01(x).
"Note" means each Note of the Borrower evidencing Advances hereunder,
substantially in the form of Exhibit A hereto, together with any extension,
renewal or amendment thereof, or substitution therefor.
"Obligations" means all present and future obligations, indebtedness and
liabilities, and all renewals and extensions of all or any part thereof, of the
Borrower and each Obligor to Lenders and Administrative Lender arising from, by
virtue of, or pursuant to this Agreement, any of the other Loan Papers and any
and all renewals and extensions thereof or any part thereof, or future
amendments thereto, all interest accruing on all or any part thereof and
reasonable attorneys' fees incurred by the Administrative Lender for the
preparation of this Agreement and consummation of this credit facility,
execution of waivers, amendments and consents, and in connection with the
enforcement or the collection of all or any part thereof, and reasonable
attorneys' fees incurred by the Lenders in connection with the enforcement or
the collection of all or any part of the Obligations during the continuance of
an Event of Default, in each case whether such obligations, indebtedness and
liabilities are direct, indirect, fixed, contingent, joint, several or joint and
several. Without limiting the generality of the foregoing, "Obligations"
includes all amounts which would be owed by the Borrower, each other Obligor and
any other Person (other than Administrative Lender or Lenders) to Administrative
Lender or Lenders under any Loan Paper, but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Borrower, any other Obligor
or any other Person (including all such amounts which would become due or would
be secured but for the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding of the Borrower, any other
Obligor or any other Person under any Debtor Relief Law).
19
"Obligor" means (a) the Borrower, (b) the Parent, (c) each Subsidiary of
the Borrower, (d) each other Person liable for performance of any of the
Obligations and (e) each other Person the Property of which secures the
performance of any of the Obligations. Notwithstanding the foregoing, ABRY
shall not be considered an Obligor for purposes of Sections 9.01(g), (h), (k)
and (l) hereof.
"Operating Cash Flow" means, for the Borrower and its Subsidiaries on a
consolidated basis for the most recently completed calendar month, the sum of
(a) pre-tax income or deficit, as the case may be (excluding extraordinary items
and income from the sale of assets) for such month, plus (b) interest expense on
Debt for Borrowed Money of the Borrower and its Subsidiaries on a consolidated
basis for such month, plus (c) depreciation and amortization expense for such
month, plus (d) general and administrative expenses for such month.
"Original Credit Agreement" has the meaning ascribed thereto in the
preamble hereof.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
agency or entity performing substantially the same functions.
"Parasite Transaction" means the acquisition by the Borrower of certain
assets described in the Purchase and Sale Agreement and the Exchange Agreement
between Southern Communications Services, Inc. and the Borrower, dated January
9, 1998.
"Parent" means Pinnacle Holdings Inc., a Delaware corporation.
"Parent Guaranty" means any Guaranty executed by the Parent guarantying
payment and performance of the Obligations, substantially in the form of Exhibit
L attached hereto, as such agreement may be amended, modified, renewed or
extended from time to time.
"Parent Pledge Agreement" means the Pledge Agreement executed by the
Parent, granting a Lien on 100% of the Capital Stock of the Borrower owned by
the Parent which such Capital Stock will constitute Pledged Stock securing the
Obligations, substantially in the form of Exhibit M hereto, as such agreement
may be amended, modified, renewed or extended from time to time.
"Permitted Acquisition" means (i) the development, construction or
acquisition of towers or rooftop space, or (ii) acquisitions of 100% of the
Capital Stock of any Person owning or leasing towers or rooftop space, or (iii)
acquisition of leasehold rights on Towers for the purpose of subleasing, in each
case by the Borrower or any Subsidiary of the Borrower, including without
limitation, the Parasite Transaction, which, after giving effect to
20
the proposed acquisition and any equity investments and borrowings related
thereto, would not cause a Default or Event of Default under Section 8.01(a)
hereof or any other term or provision of this Agreement and the Loan Papers;
provided that, the calculation of the Leverage Ratio shall exclude revenues or
charges attributable to Properties of the Borrower and its Subsidiaries sold
during the calculation period as if such sale occurred on the first day of such
period and shall include revenues and charges attributable to Properties of the
Borrower and its Subsidiaries purchased during such period as if such purchase
occurred on the first day of such period.
"Permitted Liens" means, as applied to any Person:
(a) any Lien in favor of the Lenders to secure the Obligations hereunder;
(b) (i) Liens on real estate for real estate Taxes not yet delinquent, (ii)
Liens created by lease agreements, statute or common law to secure the payments
of rental amounts and other sums not yet due thereunder, (iii) Liens on
leasehold interests created by the lessor in favor of any mortgagee of the
leased premises, and (iv) Liens for Taxes, assessments, governmental charges,
levies or claims that are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves shall have been set
aside on such Person's books, but only so long as no foreclosure, restraint,
sale or similar proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and materialmen
and other similar Liens incurred in the ordinary course of business for sums not
yet due or being contested in good faith, if such reserve or appropriate
provision, if any, as shall be required by GAAP shall have been made therefor;
(d) Liens incurred in the ordinary course of business in connection with
worker's compensation, unemployment insurance or similar legislation;
(e) Easements, right-of-way, restrictions and other similar encumbrances on
the use of real property which do not interfere with the ordinary conduct of the
business of such Person;
(f) Liens in respect of judgments or awards for which appeals or
proceedings for review are being prosecuted and in respect of which a stay of
execution upon any such appeal or proceeding for review shall have been secured,
provided that (i) such Person shall have established adequate reserves for such
judgments or awards, (ii) such judgments or awards shall be fully insured and
the insurer shall not have denied coverage, or (iii) such judgments or awards
shall have been bonded to the satisfaction of the Majority Lenders;
21
(g) Any Liens existing on the Closing Date which are described on Schedule
8.03 hereto, and Liens resulting from the refinancing of the related Debt for
Borrowed Money, provided that the Debt for Borrowed Money secured thereby shall
not be increased and the Liens shall not cover additional assets of the
Borrower, the Parent or any such Subsidiary; and
(h) Any Liens which secure the Debt for Borrowed Money permitted under
Section 8.02(e) hereof.
"Person" means an individual, partnership, joint venture, corporation,
trust, Tribunal, unincorporated organization, and government, or any department,
agency, or political subdivision thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Stock" means all of the Capital Stock of the Subsidiaries of the
Borrower and all of the Capital Stock of the Borrower.
"Restated Credit Agreement" has the meaning ascribed thereto in the
preamble hereof.
"Primary Non-Conforming Tenant Leases" means those Tenant Leases which are
oral and not subject to any written agreement, except those Tenant Leases that
are Secondary Non-Conforming Tenant Leases.
"Pro Forma Debt Service" means, on any date of determination, for the
Parent, the Borrower and its Subsidiaries, the sum of (a) cash Interest Expense
minus (without duplication) interest that is payable in-kind at the option of
the Borrower, the Parent or any Subsidiary of the Borrower, plus (b) required or
scheduled principal payments with respect to Debt for Borrowed Money, each for
the twelve calendar months immediately succeeding any date of determination,
provided that, with respect to any Debt for Borrowed Money subject to a floating
interest rate, the rate of interest on such Debt for Borrowed Money for the four
fiscal quarters immediately succeeding any such date of determination shall be
deemed to be the weighted average interest rate applicable to the Obligations on
the date of calculation of Pro Forma Debt Service.
"Prohibited Transaction" has the meaning specified in Section 4975 of the
Code or Section 406 of Title I of ERISA.
"Property" means all types of real, personal, tangible, intangible, or
mixed property, whether owned or hereafter acquired in fee simple or leased by
the Parent, the Borrower and its Subsidiaries, including for the Borrower and
its Subsidiaries without limitation, the Tenant Leases.
22
"Pro Rata" means, as to any Lender, in accordance with its percentage of
the aggregate amount of outstanding Advances; provided, however, that if no
-------- -------
Advances are outstanding, such term means in accordance with such Lender's
Specified Percentage.
"Qualified REIT Subsidiaries" means the Borrower and any Subsidiary of the
Borrower, so long as such entity meets the qualifications set forth in Section
856(i)(2) of the Code.
"Quarterly Date" means the last day of each March, June, September and
December during the term of this Agreement.
"Ratable" means, as to any Lender, in accordance with its Specified
Percentage.
"Refinancing Advance" means any Advance which is used to pay the principal
amount (or any portion thereof) of an Advance at the end of its Interest Period
and which, after giving effect to such application, does not result in an
increase in the aggregate amount of outstanding Advances.
"REIT Status" means, with respect to any Person, such Person's status as a
real estate investment trust, as defined in Section 856(a) of the Code, that
satisfies the conditions and limitations set forth in Sections 856(b) and 856(c)
of the Code.
"Release Date" means the date on which the Notes have been paid, all other
Obligations due and owing have been paid and performed in full, and the
Available Commitment has been terminated.
"Rental Obligations" means amounts payable by a lessee under a lease
including, without limitation, amounts payable under any renewal or purchase
option in favor of the lessee which, if not paid, will result in a material
forfeiture of rights, interest or property available to such lessee (i.e. a
forfeiture of rights, interest or property with a fair market value materially
greater than the cost of exercising such renewal or purchase option.)
"Restricted Payments" means (a) any direct or indirect Distribution,
dividend or other payment on account of any equity interest in, or shares of
capital stock or other securities of, the Borrower or the Parent (or the
establishment of any sinking fund or otherwise the setting aside of any funds
with respect thereto); (b) any management, consulting or other similar fees, or
any interest thereon, payable by the Parent, the Borrower or any of its
Subsidiaries to any Affiliate of the Parent, the Borrower, or to any other
Person other than an unrelated third party (or the establishment of any sinking
fund or otherwise the setting aside of any funds with respect thereto); and (c)
any cash payment of interest, principal, fees or penalties, on any Subordinated
Debt,
23
or the establishment of any sinking fund or otherwise the setting aside of any
funds with respect thereto.
"Rights" means rights, remedies, powers, and privileges.
"Secondary Non-Conforming Tenant Leases" means, on any date of
determination, each such Tenant Lease (a) which is oral and not subject to any
written agreement, or (b) with respect to which any Lien of the Administrative
Lender or any foreclosure and/or operation of the Tower on which such Tenant
Lease is located by the Lenders is prohibited, unenforceable or null and void,
whether by contractual provision, operation of law or otherwise, or (c) which
has any provision preventing, hindering or prohibiting the Administrative Lender
from directly receiving the rents, receivables or other Tenant Lease Revenues
from the lessee (or which is prevented, hindered or prohibited by the operation
of Law), provided that no Tenant Lease shall be a Secondary Non-Conforming
Tenant Lease unless (A) the Borrower is at all times diligently and in good
faith pursuing either a written agreement or eliminating the problems described
in (b) or (c) above (a "Curing Action") with respect to such Tenant Lease, (B)
negotiations regarding such Curing Action have not been terminated and are
proceeding toward consummation, (C) the lessee under each such Tenant Lease is
current under its monetary obligations to the Borrower in accordance with past
and current practice generally, (D) the FCC database regarding such Tenant Lease
shows (I) that the lessee under such Tenant Lease has been licensed to use the
applicable Tower and (II) does not indicate that the lessee has filed for
approval to remove or transfer from such Tower, (E) the Borrower is not aware
and has not received notice that any such lessee is moving from the Tower within
the next six months, and (F) such Curing Action with respect to such Tenant
Lease shall have been consummated within (x) six months after the Closing Date,
for each Tenant Lease listed on Schedule 5.01(w) hereto, and (y) within six
months after the date of any acquisition or creation of any Tenant Lease for
each Tenant Lease not listed Schedule 5.01(w) hereto, provided that, if the
Borrower can demonstrate to the satisfaction of the Administrative Lender that
any Curing Action with respect to any Tenant Lease is still probable after the
expiration of the six month period, any such Tenant Lease will be included in
the definition of Secondary Non-Conforming Tenant Lease for an additional six
month period.
"Security Agreements" means (a) the Security Agreement, duly executed by
the Borrower and Parent in substantially the form of Exhibit B hereto,
appropriately completed, and (b) each Security Agreement, duly executed by each
of the Borrower's Subsidiaries, in substantially the form of Exhibit H hereto,
appropriately completed, in each case as amended, modified, substituted,
replaced or extended from time to time.
24
"Shareholder" or "Shareholders" means, on any date of determination, the
shareholders of the Parent.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, other than a Multiple Employer Plan of the Borrower.
"Solvent" means, with respect to any Person, that on such date (a) the fair
value of the Property of such Person is greater than the total amount of
liabilities, including without limitation Contingent Liabilities of such Person,
(b) the present fair salable value of the assets of such Person on a going
concern basis is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature, and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's Property would constitute an unreasonably small capital.
"Special Counsel" means the law firm of Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C.,
Dallas, Texas, or such other individual or firm acting as special counsel to
Administrative Lender, as designated by Administrative Lender from time to time.
"Specified Percentage" means, as to any Lender, the percentage indicated
beside its name on the signature pages hereof, or as adjusted or specified in
any Assignment and Acceptance.
"Stockholders Agreement" has the meaning ascribed thereto in Section
8.08(b)(vi) hereto.
"Subordinated Debt" means Debt for Borrowed Money of the Borrower, any
Subsidiary of the Borrower or the Parent, including without limitation, Debt for
Borrowed Money of the Parent incurred pursuant to the Term Loan Agreement, that
is subordinated to the Obligations hereunder in accordance with the terms and
provisions of the Subordination Agreement substantially in the form of Exhibit I
attached hereto.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) 50% or more of:
(a) the outstanding capital stock having voting power to elect a
majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency),
25
(b) the interest in the capital or profits of such partnership or
joint venture, or
(c) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by such Person, by such Person
and one or more of its Subsidiaries or by one or more of such Person's
Subsidiaries.
"Subsidiary Guaranty" means the Guaranty, executed by each Subsidiary of
the Borrower, guarantying payment and performance of the Obligations,
substantially in the form of Exhibit G attached hereto, as such agreement may be
amended, modified, renewed or extended from time to time.
"SuperMajority Lenders" means any combination of Lenders having at least
73% of the aggregate amount of outstanding Advances hereunder, provided,
--------
however, that if no Advances are outstanding, such term means any combination of
-------
Lenders having Specified Percentages equal to at least 73%.
"Synthetic Lease" means any lease entered into in connection with the lease
or acquisition of fixed assets which is treated under GAAP as an operating lease
but for Tax purposes as a capital lease.
"Taxes" means all taxes, assessments, imposts, fees, or other charges at
any time imposed by any Laws or Tribunal.
"Tenant Lease Revenue" means, with respect to each Tenant Lease for the
most recently completed calendar month, all revenues generated by such Tenant
Lease for such month.
"Tenant Leases" means each of the leases of space on any Tower of the
Borrower or any Subsidiary of the Borrower now existing or hereafter created or
acquired, including, without limitation, those leases listed on Schedule 5.01(w)
hereto.
"Term Loan Agreement" means the Term Loan Agreement, dated as of September
22, 1997 between Parent, Xxxxxxx Sachs Credit Partners, L.P., and NationsBridge,
L.L.C., as amended, restated or otherwise modified from time to time, as may be
refinanced on substantially similar terms acceptable in form and substance to
the Administrative Lender and the SuperMajority Lenders (including without
limitation, subordination terms) as, the Term Loan Agreement.
"Total Debt" means all Debt for Borrowed Money of a Person which would be
shown on a balance sheet in accordance with GAAP, including, without limitation,
(a) Capital Lease obligations, (b) obligations to pay the deferred purchase
price of property and services (but excluding trade payables that are less than
90 days
26
old and any thereof that are being contested in good faith), (c) Debt of any
other Person secured by a Lien on the property of the Borrower and the Parent or
any Subsidiary of the Borrower and the Parent, (d) Contingent Liabilities, and
(e) Withdrawal Liability.
"Tower" means each tower owned or managed by the Borrower or any Subsidiary
of the Borrower, and each rooftop or other site owned or managed by the Borrower
or any Subsidiary of the Borrower in the ordinary course of business.
"Tower Cash Flow" means, with respect to each Tower for the most recently
completed calendar month, the remainder of (a) the aggregate amount of all
Tenant Lease Revenues generated by all Tenant Leases relating to such Tower for
such month, plus (b) all newly executed leases as if such leases were effective
as of the beginning of such calendar month minus (c) Tower level cash operating
expenses for such Tower for such month.
"Tower Construction Advances" means those Advances used by the Borrower
solely for the construction or refurbishment of Towers and designated as a Tower
Construction Advance in the monthly certification required by Section 7.07(a)
hereof, in an aggregate amount outstanding on any date of determination not to
exceed the amount permitted by Section 8.01(e) hereof. Notwithstanding anything
herein to the contrary (a) no Advance may be a Tower Construction Advance if
twelve consecutive months have passed after the date such Tower Construction
Advance was made or designated as a Tower Construction Advance, and (b) any
particular Advance designated as a Tower Construction Advance may only be
designated once as a Tower Construction Advance.
"Tribunal" means any state, commonwealth, federal, foreign, territorial, or
other court or government body, subdivision, agency, department, commission,
board, bureau, or instrumentality of a governmental body.
"Type" refers to the distinction between Advances bearing interest at the
Base Rate and LIBOR Rate.
"UCC" means the Uniform Commercial Code as adopted in the State of Texas on
the Closing Date.
"Unavailable Commitment" means, prior to the Conversion Date, $50,000,000
(as such amount may be reduced from time to time as a result of the reallocation
of any portion of the Unavailable Commitment to the Available Commitment in
accordance with the terms of Section 2.18 hereof), and after the Conversion
Date, $0.00.
"Withdrawal Liability" has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
27
1.02. Accounting and Other Terms. All accounting terms used in this
Agreement which are not otherwise defined herein shall be construed in
accordance with GAAP on a consolidated basis for the Parent, the Borrower and
its Subsidiaries, unless otherwise expressly stated herein. References herein
to one gender shall be deemed to include all other genders. Except where the
context otherwise requires, (a) definitions imparting the singular shall include
the plural and vice versa and (b) all references to time are deemed to refer to
Dallas time.
ARTICLE II. AMOUNTS AND TERMS OF ADVANCES
2.01. The Advances. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, to make Advances to the
Borrower on a Business Day during the period from the Closing Date to the
Maturity Date, in an aggregate principal amount not to exceed at any time
outstanding such Lender's Specified Percentage of the Available Commitment, and
after the Conversion Date, there shall be no increase in principal amount of
Advances. Subject to the terms and conditions of this Agreement, the Borrower
may borrow, repay and reborrow the Advances; provided, however, that (a) all
-------- -------
reborrowings of Advances after the Conversion Date shall be Refinancing
Advances, and (b) at no time shall the sum of all outstanding Advances plus the
face amount of all outstanding Letters of Credit plus reimbursement obligations
under Article III ever exceed the Available Commitment.
2.02. Making Advances.
(a) Each Borrowing of Advances shall be made upon the written notice of the
Borrower, received by Administrative Lender not later than (i) 10:00 a.m. three
Business Days prior to the date of the proposed Borrowing, in the case of LIBOR
Advances and (ii) 10:00 a.m. on the date of such Borrowing, in the case of Base
Advances. Each such notice of a Borrowing (a "Borrowing Notice") shall be by
telecopy or telephone, promptly confirmed by letter, in substantially the form
of Exhibit D hereto specifying therein:
(i) the date of such proposed Borrowing, which shall be a
Business Day;
(ii) the Type of Advances of which the Borrowing is to be
comprised;
(iii) the amount of such proposed Borrowing which, (A) in the
case of Advances, shall not exceed the unused portion of the Available
Commitment, (B) shall, in the case of a Borrowing of Base Advances, be in
an amount of not less than $100,000 or an integral multiple of $50,000 in
excess thereof (or any lesser amount if such amount is the remaining
undrawn portion under the Available Commitment) and (C) shall, in the
28
case of a Borrowing of LIBOR Advances, be in an amount of not less than
$500,000 or an integral multiple of $100,000 in excess thereof; and
(iv) if the Borrowing is to be comprised of LIBOR Advances, the
duration of the initial Interest Period applicable to such Advances.
If the Borrowing Notice fails to specify the duration of the initial
Interest Period for any Borrowing comprised of LIBOR Advances, such Interest
Period shall be three months. Administrative Lender shall promptly notify
Lenders of each such notice. Each Lender shall, before 1:00 p.m. on the date of
each Advance hereunder (other than a Refinancing Advance), make available to
Administrative Lender, at its office at NationsBank Plaza, 000 Xxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, such Lender's Specified Percentage of the aggregate
Advances to be made on that day in immediately available funds.
(b) Unless any applicable condition specified in Article IV has not been
satisfied, Administrative Lender will make the funds promptly available to the
Borrower (other than with respect to a Refinancing Advance) by wiring such
amounts pursuant to any wiring instructions specified by the Borrower to the
Administrative Lender in writing.
(c) After giving effect to any Borrowing, (i) there shall not be more than
five different Interest Periods in effect and (ii) the aggregate principal
amount of outstanding Advances, Letters of Credit, and reimbursement obligations
under Article III shall not exceed the Available Commitment.
(d) No Interest Period applicable to any Advance shall extend beyond the
Maturity Date.
(e) Unless a Lender shall have notified Administrative Lender prior to the
date of any Advance that it will not make available its Specified Percentage of
any Advance, Administrative Lender may assume that such Lender has made the
appropriate amount available in accordance with Section 2.02(a) hereof, and
Administrative Lender may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent any Lender shall not
have made such amount available to Administrative Lender, such Lender and the
Borrower severally agree to repay to Administrative Lender immediately on demand
such corresponding amount together with interest thereon, from the date such
amount is made available to the Borrower until the date such amount is repaid to
Administrative Lender, at (i) in the case of the Borrower, the Base Rate, and
(ii) in the case of such Lender, the Federal Funds Rate.
29
(f) The failure by any Lender to make available its Specified Percentage of
any Advance hereunder shall not relieve any other Lender of its obligation, if
any, to make available its Specified Percentage of any Advance. In no event,
however, shall any Lender be responsible for the failure of any other Lender to
make available any portion of any Advance.
(g) The Borrower shall indemnify each Lender against any Consequential Loss
incurred by each Lender as a result of (i) any failure to fulfill, on or before
the date specified for the Advance, the conditions to the Advance set forth
herein or (ii) the Borrower's requesting that an Advance not be made on the date
specified in the Borrowing Notice.
2.03. Evidence of Debt for Borrowed Money.
(a) The Advances made by each Lender shall be evidenced by a Note in the
amount of such Lender's Specified Percentage of the Aggregate Commitment in
effect on the Closing Date (as the same may be modified pursuant to Section
11.04 hereof).
(b) Administrative Lender's and each Lender's records shall be presumptive
evidence as to amounts owed Administrative Lender and such Lender under the
Notes and this Agreement.
2.04. Optional Prepayments.
(a) The Borrower may, upon at least two Business Days prior written notice
to Administrative Lender stating the proposed date and aggregate principal
amount of the prepayment, prepay the outstanding principal amount of any
Advances in whole or in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid without premium or penalty other than
any Consequential Loss; provided, however, that in the case of a prepayment of a
-------- -------
Base Advance, the notice of prepayment may be given by telephone by 10:00 a.m.
on the date of prepayment. Each partial prepayment shall, in the case of Base
Advances, be in an aggregate principal amount of not less than $100,000 or a
larger integral multiple of $50,000 in excess thereof and, in the case of LIBOR
Advances, be in an aggregate principal amount of not less than $500,000 or a
larger integral multiple of $100,000 in excess thereof. If any notice of
prepayment is given, the principal amount stated therein, together with accrued
interest on the amount prepaid and the amount, if any, due under Section 2.12
and Section 2.14 hereof, shall be due and payable on the date specified in such
notice unless the Borrower revokes its notice, provided that, if the Borrower
revokes its notice of prepayment prior to such date specified, the Borrower
shall reimburse the Administrative Lender for the account of all Lenders for all
Consequential Losses suffered by each Lender as a result of the Borrower's
failure to prepay. A certificate of each Lender claiming compensation under
30
this Section 2.04(a), setting forth in reasonable detail the calculation of the
additional amount or amounts to be paid to it hereunder shall be presumptive
evidence of the validity of such claim.
(b) No prepayments of Advances made prior to the Conversion Date solely
pursuant to this Section 2.04 shall cause the Available Commitment to be
reduced. Each prepayment of Advances on or after the Conversion Date made
pursuant to this Section 2.04 shall permanently reduce the Available Commitment
by the amount of such prepayment as of the date of such prepayment, and shall be
applied to installments due and owing under Section 2.06(b) hereof in the
inverse order of maturity.
2.05. Mandatory Prepayments.
(a) Excess Cash Flow. Within 130 days after the end of each fiscal year
of Borrower ending on or after the Conversion Date, the Borrower shall pay to
Administrative Lender for the Ratable account of Lenders an amount equal to (i)
50% of Excess Cash Flow for the preceding fiscal year if the Leverage Ratio
calculated at the end of the same period is less than 5.00 to 1.00, or (b) 100%
of Excess Cash Flow for the preceding fiscal year if the Leverage Ratio
calculated at the end of the same period is greater than or equal to 5.00 to
1.00. All prepayments made pursuant to this Section 2.05(a) shall be applied to
reduce outstanding Advances (which amounts may not be reborrowed), applied to
installments due under Section 2.06(b) hereof in the inverse order of maturity.
Notwithstanding anything herein to the contrary, no Advance constituting a Tower
Construction Advance will be included in the Total Debt calculation to determine
the Leverage Ratio in order to determine compliance with this Section 2.05(a),
but only so long as (A) such Advance remains a Tower Construction Advance, and
(B) there is not included in the calculation of EBITDA for the purposes of this
Section 2.05(a) only, revenue attributable to any new Tower being constructed
with the proceeds of any such Tower Construction Advance for so long as any such
Tower Construction Advance remains designated as a Tower Construction Advance,
it being understood by the parties hereto that, notwithstanding the use of Tower
Construction Advances to refurbish or replace any existing Tower, revenue
attributable to such refurbished or replacement Tower may not be included in the
calculation of EBITDA in order to determine Leverage Ratio in order to determine
compliance with this Section 2.05(a).
(b) Additional Equity and Allowed Debt. To the extent that the Borrower
or any of its Subsidiaries issues any public or private indebtedness (except
that permitted to be incurred under Section 8.02 hereof) or equity securities
(except debt and equity described in Section 8.02(c) hereof or pursuant to the
Capital Contribution Agreement) (this provision shall not in and of itself
permit the Borrower to consummate any of the above described transactions), then
unless the Net Proceeds therefrom are used,
31
within 180 days thereafter, for Permitted Acquisitions or for Capital
Expenditures relating to Towers, the Borrower and its Subsidiaries shall
immediately after the expiration of such 180-day period use the Net Proceeds of
any such transaction to repay Advances hereunder. All prepayments made pursuant
to this Section 2.05(b) shall be applied to reduce outstanding Advances, and, if
such payment is made after the Conversion Date, applied to installments due
under Section 2.06(b) hereof in the inverse order of maturity (which such
amounts may not be reborrowed if made after the Conversion Date). For so long
as any obligations under the Term Loan Agreement remain outstanding, upon the
occurrence of a "Change of Control" as that term is defined in the Term Loan
Agreement, the Borrower will repay Advances hereunder.
(c) Asset Sales. To the extent that the Borrower or any of its
Subsidiaries consummates any sale of any asset or any of its Properties other
than in the ordinary course of business, then unless the Net Proceeds therefrom
are used, within 180 days thereafter, for Permitted Acquisitions or for Capital
Expenditures relating to Towers, the Borrower and its Subsidiaries shall
immediately after the expiration of the 180-day period use the Net Proceeds of
any such transaction to repay Advances hereunder. All prepayments made pursuant
to this Section 2.05(c) shall be applied to reduce outstanding Advances and, if
such payment is made after the Conversion Date, applied to installments due
under Section 2.06(b) hereof in the inverse order of maturity (which such
amounts may not be reborrowed if made after the Conversion Date).
(d) Mandatory Prepayments, Generally. Any prepayments made pursuant to
this Section 2.05 shall be first applied to Base Advances and then to LIBOR
Advances, without premium or penalty, except the Borrower must pay together with
any such prepayments, any Consequential Losses.
2.06. Repayment.
(a) Installment Payments. The Borrower shall repay the Advances to
Administrative Lender for the Ratable account of Lenders on each Quarterly Date
in an amount on each such date equal to the percentage set forth below of the
aggregate amount of Advances outstanding on the Conversion Date opposite each
such Quarterly Date, the first of such payments to be due and payable on the
first Quarterly Date after the Conversion Date. The unpaid principal balance of
all Advances is due and payable on the Maturity Date.
32
Percentage of Aggregate
Advances
outstanding on the
Date of Payment Conversion Date
--------------- ---------------
June 30, 2000 3.000%
September 30, 2000 3.000%
December 31, 2000 3.000%
March 31, 2001 3.250%
June 30, 2001 3.250%
September 30, 2001 3.250%
December 31, 2001 3.250%
March 31, 2002 3.875%
June 30, 2002 3.875%
September 30, 2002 3.875%
December 31, 2002 3.875%
March 31, 2003 4.625%
June 30, 2003 4.625%
September 30, 2003 4.625%
December 31, 2003 4.625%
March 31, 2004 4.750%
June 30, 2004 4.750%
September 30, 2004 4.750%
December 31, 2004 4.750%
March 31, 2005 6.250%
June 30, 2005 6.250%
September 30, 2005 6.250%
December 31, 2005 6.250%
(b) LIBOR Advances. The principal amount of each LIBOR Advance is due and
payable on the last day of the applicable Interest Period, which principal
payment may be made by means of a Refinancing Advance (subject to the other
provisions of this Agreement).
(c) Available Commitment Reduction. On the date of a reduction of the
Available Commitment pursuant to Section 2.11 hereof, the aggregate amount of
the applicable Advances outstanding on the date of reduction in excess of such
Available Commitment as reduced shall be due and payable, which principal
payment may not be made by means of a Refinancing Advance.
(e) Repayments, Generally. Any repayments made pursuant to this Section
2.06 shall be first applied to Base Advances and then to LIBOR Advances in the
order of maturity, without premium or penalty, except the Borrower must pay
together with any such prepayments, any Consequential Losses.
2.07. Interest. Subject to Section 2.07 and Section 11.08 hereof, the
Borrower shall pay interest on the unpaid principal amount of each Advance from
the date of such Advance until such principal shall be paid in full, at the
following rates per annum:
33
(a) Base Advances. Base Advances shall bear interest at a rate per
annum equal to the Base Rate as in effect from time to time. If the amount
of interest payable in respect of any interest computation period is
reduced to the Highest Lawful Rate and the amount of interest payable in
respect of any subsequent interest computation period would be less than
Maximum Amount, then the amount of interest payable in respect of such
subsequent interest computation period shall be automatically increased to
the Maximum Amount; provided that at no time shall the aggregate amount by
--------
which interest paid has been increased pursuant to this sentence exceed the
aggregate amount by which interest has been reduced pursuant to this
sentence.
(b) LIBOR Advances. LIBOR Advances shall bear interest at the rate
per annum equal to the LIBOR Rate applicable to such Advance.
(c) Payment Dates. Accrued and unpaid interest on Base Advances shall
be paid quarterly in arrears on each Quarterly Date and on the Maturity
Date. Accrued and unpaid interest in respect of each LIBOR Advance shall
be paid on the last day of the appropriate Interest Period and on the date
of any prepayment or repayment of such Advance; provided, however, that if
-------- -------
any Interest Period for a LIBOR Advance exceeds three months, interest
shall also be paid on the date which falls three months after the beginning
of such Interest Period.
2.08. Default Interest. During the continuation of any Event of
Default, the Borrower shall pay, on demand, interest (after as well as before
judgment to the extent permitted by Law) on the principal amount of all Advances
outstanding and on all other Obligations due and unpaid hereunder at a per annum
rate equal to the lesser of the (a) the Highest Lawful Rate and (b) (i) to the
extent any such Advance outstanding at such time is bearing interest at the
LIBOR Rate, then the applicable LIBOR Rate plus 3.00% to the end of its Interest
Period, and (ii) for all other outstanding Advances, the Base Rate plus 2%.
LIBOR Advances shall not be available for selection by the Borrower during the
continuance of an Event of Default.
2.09. Continuation and Conversion Elections.
(a) The Borrower may upon irrevocable written notice to Administrative
Lender and subject to the terms of this Agreement:
(i) elect to convert, on any Business Day, all or any portion
of outstanding Base Advances (in an aggregate amount not less than $500,000
or an integral multiple of $100,000 in excess thereof) into LIBOR Advances;
or
34
(ii) elect to convert at the end of any Interest Period
therefor, all or any portion of outstanding LIBOR Advances comprised in the
same Borrowing (in an aggregate amount not less than $100,000 or an
integral multiple of $50,000 in excess thereof) into Base Advances; or
(iii) elect to continue, at the end of any Interest Period
therefor, any LIBOR Advances;
provided, however, that if the aggregate amount of outstanding LIBOR
-------- -------
Advances comprised in the same Borrowing shall have been reduced as a result of
any payment, prepayment or conversion of part thereof to an amount less than
$500,000, the LIBOR Advances comprised in such Borrowing shall automatically
convert into Base Advances at the end of each respective Interest Period.
(b) The Borrower shall deliver a notice of conversion or continuation (a
"Conversion or Continuation Notice"), in substantially the form of Exhibit E
hereto, to Administrative Lender not later than 10:00 a.m. (i) three Business
Days prior to the proposed date of conversion or continuation, if the Advances
or any portion thereof are to be converted into or continued as LIBOR Advances;
and (ii) on the Business Day of the proposed conversion, if the Advances or any
portion thereof are to be converted into Base Advances.
Each such Conversion or Continuation Notice shall be by telecopy or
telephone, promptly confirmed by letter, specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Advances to be converted or
continued;
(iii) the nature of the proposed conversion or continuation; and
(iv) the duration of the applicable Interest Period.
(c) If, upon the expiration of any Interest Period applicable to LIBOR
Advances, the Borrower shall have failed to select a new Interest Period to be
applicable to such LIBOR Advances or if an Event of Default shall then have
occurred and be continuing, the Borrower shall be deemed to have elected to
convert such LIBOR Advances into Base Advances effective as of the expiration
date of such current Interest Period.
(d) Notwithstanding any other provision contained in this Agreement, after
giving effect to any conversion or continuation of
35
any Advances, there shall not be outstanding Advances with more than five
different Interest Periods.
2.10. Fees.
(a) Facility Fee. Subject to Section 11.08 hereof, the Borrower shall pay
to Administrative Lender for the account of each of the Lenders an origination
and facility fee as set forth in the Fee Letter dated the Closing Date between
Administrative Lender and the Borrower.
(b) Commitment Fee. Subject to Section 11.08 hereof, the Borrower shall
pay to Administrative Lender for the Ratable account of Lenders a commitment fee
on the average daily amount of the difference between (A) the Available
Commitment and (B) the sum of all Advances outstanding and the face amount of
all outstanding Letters of Credit .50% per annum, payable in arrears on each
Quarterly Date and on the Conversion Date, commencing with the first Quarterly
Date after the Closing Date, and continuing until the Conversion Date.
2.11. Reduction of Available Commitment.
(a) Mandatory Termination of the Available Commitment. The Available
Commitment terminates on the Conversion Date.
(b) Reduction of the Available Commitment. The Available Commitment shall
be permanently reduced in accordance (i) with the terms of Section 8.01(a)
hereof and the Capital Contribution Agreement and (ii) after the Conversion
Date, with a mandatory principal repayment pursuant to Section 2.05 in the
amount of such payment.
(c) Voluntary Available Commitment Reductions. The Borrower may from time
to time, upon notice to Administrative Lender not later than 1:00 p.m., five
Business Days in advance, terminate in whole or reduce in part the Available
Commitment, as designated by the Borrower; provided, however, that the Borrower
-------- -------
shall pay the accrued interest and the applicable Commitment Fee on the amount
of such reduction and all amounts due, and any partial reduction shall be in an
aggregate amount which is an integral multiple of $1,000,000.
(d) Available Commitment Reductions, Generally. To the extent outstanding
Advances exceed the applicable Available Commitment after any reduction thereof,
the Borrower shall repay, on the date of such reduction, any such excess amount
and all accrued interest thereon, the applicable Commitment Fee on the amount of
such reduction and all amounts due. Once reduced or terminated, the Available
Commitment may not be increased or reinstated, except in accordance with Section
2.18 hereof.
36
2.12. Funding Losses. The Borrower may prepay the outstanding
principal balance of any Advance, in full at any time or in part from time to
time in accordance with the terms of Section 2.04 hereof, provided, that as a
--------
condition precedent to the Borrower's right to make, and any Lender's obligation
to accept, any such prepayment, each such prepayment shall be in the amount of
100% of the principal amount to be prepaid, plus accrued unpaid interest thereon
to the date of prepayment, plus any other sums which have become due to
Administrative Lender and Lenders under the Loan Papers on or before the
prepayment date but have not been paid, plus (subject to Section 11.08 hereof)
any Consequential Loss.
The Borrower agrees that each Lender is not obligated to actually reinvest
the amount prepaid in any specific obligation as a condition to receiving any
Consequential Loss, or otherwise.
2.13. Computations and Manner of Payments.
(a) The Borrower shall make each payment hereunder and under the other Loan
Papers not later than 1:00 p.m. on the day when due in same day funds to
Administrative Lender, for the Ratable account of Lenders unless otherwise
specifically provided herein, at Administrative Lender's office at NationsBank
Plaza, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, for further credit to the account
of Pinnacle Towers Inc. No later than the end of each day when each payment
hereunder is made, the Borrower shall notify Ms. Xxxxx Xxxxx (000) 000-0000, or
such other Person as Administrative Lender may from time to time specify.
(b) Unless Administrative Lender shall have received notice from the
Borrower prior to the date on which any payment is due hereunder that the
Borrower will not make payment in full, Administrative Lender may assume that
such payment is so made on such date and may, in reliance upon such assumption,
make distributions to Lenders. If and to the extent the Borrower shall not have
made such payment in full, each Lender shall repay to Administrative Lender
forthwith on demand the applicable amount distributed, together with interest
thereon at the Federal Funds Rate, from the date of distribution until the date
of repayment. The Borrower hereby authorizes each Lender, if and to the extent
payment is not made when due hereunder, to charge the amount so due against any
account of the Borrower with such Lender.
(c) Subject to Section 11.08 hereof, interest on LIBOR Advances under the
Loan Papers shall be calculated on the basis of actual days elapsed but computed
as if each year consisted of 360 days. Subject to Section 11.08 hereof,
interest on Base Advances, the Commitment Fee and other amounts due under the
Loan Papers shall be calculated on the basis of actual days elapsed but computed
as if each year consisted of 365 or 366 days, as applicable. Such computations
shall be made including the first
37
day but excluding the last day occurring in the period for which such interest,
payment or Commitment Fee is payable. Each determination by Administrative
Lender or a Lender of an interest rate, fee or commission hereunder shall be
presumptive evidence of the validity of such claim. All payments under the Loan
Papers shall be made in United States dollars, and without setoff, counterclaim,
or other defense.
(d) Whenever any payment to be made hereunder or under any other Loan
Papers shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of interest or fees, if applicable;
provided, however, if such extension would cause payment of interest on or
-------- -------
principal of LIBOR Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Reference to any particular index or reference rate for determining any
applicable interest rate under this Agreement is for purposes of calculating the
interest due and is not intended as and shall not be construed as requiring any
Lender to actually obtain funds for any Advance at any particular index or
reference rate.
2.14. Yield Protection; Changed Circumstances.
(a) If any Lender determines that either (i) the adoption, after the date
hereof, of any Applicable Law, rule, regulation or guideline regarding capital
adequacy and applicable to commercial banks or financial institutions generally
or any change therein, or any change, after the date hereof, in the
interpretation or administration thereof by any Tribunal, central bank or
comparable agency charged with the interpretation or administration thereof, or
(ii) compliance by any Lender (or Lending Office of any Lender) with any request
or directive made after the date hereof applicable to commercial banks or
financial institutions generally regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency has the effect of reducing the rate of return on such Lender's capital as
a consequence of its obligations hereunder to a level below that which such
Lender could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's policies with respect to capital adequacy) by
an amount reasonably deemed by such Lender to be material, then from time to
time, within fifteen days after demand by such Lender, the Borrower shall pay to
such Lender such additional amount or amounts as will adequately compensate such
Lender for such reduction. Each Lender will notify the Borrower of any event
occurring after the date of this Agreement which will entitle such Lender to
compensation pursuant to this Section 2.14(a) as promptly as practicable after
such Lender obtains actual knowledge of such event; provided, no Lender shall be
--------
liable for its failure or the failure of any other Lender
38
to provide such notification. A certificate of such Lender claiming
compensation under this Section 2.14(a), setting forth in reasonable detail the
calculation of the additional amount or amounts to be paid to it hereunder and
certifying that such claim is consistent with such Lender's treatment of similar
customers having similar provisions generally in their agreements with such
Lender shall be presumptive evidence of the validity of such claim. Each Lender
shall use reasonable efforts to mitigate the effect upon the Borrower of any
such increased costs payable to such Lender under this Section 2.14(a).
(b) If, after the date hereof, any Tribunal, central bank or other
comparable authority, at any time imposes, modifies or deems applicable any
reserve (including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System), special deposit or similar requirement against
assets of, deposits with or for the amount of, or credit extended by, any
Lender, or imposes on any Lender any other condition affecting a LIBOR Advance,
the Notes, or its obligation to make a LIBOR Advance, or imposes on any Lender
any other condition affecting a Letter of Credit; and the result of any of the
foregoing is to increase the cost to such Lender of making or maintaining its
Letter of Credit, LIBOR Advances, or to reduce the amount of any sum received or
receivable by such Lender under this Agreement or under the Notes, the Letters
of Credit or reimbursement obligations by an amount deemed by such Lender, to be
material, then, within five days after demand by such Lender, the Borrower shall
----
pay to such Lender such additional amount or amounts as will compensate such
Lender for such increased cost or reduction. Each Lender will (i) notify the
Borrower of any event occurring after the date of this Agreement that entitles
such Lender to compensation pursuant to this Section 2.14(b), as promptly as
practicable after such Lender obtains actual knowledge of the event; provided,
--------
no Lender shall be liable for its failure or the failure of any other Lender to
provide such notification and (ii) use good faith and reasonable efforts to
designate a different Lending Office for LIBOR Advances, of such Lender if the
designation will avoid the need for, or reduce the amount of, the compensation
and will not, in the sole opinion of such Lender, be disadvantageous to such
Lender. A certificate of such Lender claiming compensation under this Section
2.14(b), setting forth in reasonable detail the computation of the additional
amount or amounts to be paid to it hereunder and certifying that such claim is
consistent with such Lender's treatment of similar customers having similar
provisions generally in their agreements with such Lender shall be presumptive
evidence of the validity of such claim. If such Lender demands compensation
under this Section 2.14(b), the Borrower may at any time, on at least five
Business Days' prior notice to such Lender (i) repay in full the then
outstanding principal amount of LIBOR Advances, of such Lender, together with
accrued interest thereon, or (ii) convert the LIBOR Advances to Base Advances in
accordance with the provisions of this Agreement;
39
provided, however, that the Borrower shall be liable for the Consequential Loss
-------- -------
arising pursuant to those actions.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation or administration of
any Law shall make it unlawful, or any central bank or other Tribunal shall
assert that it is unlawful, for a Lender to perform its obligations hereunder to
issue or maintain Letters of Credit, make LIBOR Advances or to continue to fund
or maintain LIBOR Advances hereunder, then, on notice thereof and demand
therefor by such Lender to the Borrower, (i) each LIBOR Advance will
automatically, upon such demand, convert into a Base Advance, (ii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended until such Lender notifies Administrative Lender and the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist, and (iii) the obligation of such Lender to make or
maintain Letters of Credit shall be suspended until such Lender notifies
Administrative Lender and the Borrower that such Lender has determined that the
circumstances causing such suspension no longer exist.
(d) Upon the occurrence and during the continuance of any Default or Event
of Default, (i) each LIBOR Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Advance and (ii) the
obligation of each Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended.
(e) If any Lender notifies Administrative Lender that the LIBOR Rate for
any Interest Period for any LIBOR Advances will not adequately reflect the cost
to such Lender of making, funding or maintaining LIBOR Advances for such
Interest Period, Administrative Lender shall promptly so notify the Borrower,
whereupon (i) each such LIBOR Advance will automatically, on the last day of the
then existing Interest Period therefor, convert into a Base Advance and (ii) the
obligation of such Lender to make, or to convert Advances into, LIBOR Advances
shall be suspended until such Lender notifies Administrative Lender that such
Lender has determined that the circumstances causing such suspension no longer
exist and Administrative Lender notifies the Borrower of such fact.
(f) Failure on the part of any Lender to demand compensation for any
increased costs, increased capital or reduction in amounts received or
receivable or reduction in return on capital pursuant to this Section 2.14 with
respect to any period shall not constitute a waiver of any Lender's right to
demand compensation with respect to such period or any other period, subject,
however, to the limitations set forth in this Section 2.14.
(g) The obligations of the Borrower under this Section 2.14 shall survive
any termination of this Agreement, provided that, in
40
no event shall the Borrower be required to make a payment under this Section
2.14 with respect to any event of which the Lender making such claim had
knowledge more than twelve months prior to demand for such payment.
(h) Determinations by Lenders for purposes of this Section 2.14 shall be
presumptively correct. Any certificate delivered to the Borrower by a Lender
pursuant to this Section 2.14 shall include in reasonable detail the basis for
such Lender's demand for additional compensation and a certification that the
claim for compensation is consistent with such Lender's treatment of similar
customers having similar provisions generally in their agreements with such
Lender.
(i) Notwithstanding any other provision of this Agreement, no Lender not
organized under the Laws of the United States or any State (or which has a Bank
Affiliate not organized under the Laws of the United States or any State) shall
be entitled to compensation pursuant to this Section 2.14 with respect to any
amount which would otherwise be due under this Section 2.14 but which is the
result of an act of a Tribunal of the country in which such Lender or Bank
Affiliate is organized.
2.15. Use of Proceeds. The proceeds of the Advances shall be available
----- ---------------
(and the Borrower shall use such proceeds) solely (a) on the Closing Date, to
refinance existing indebtedness of the Borrower, (b) for Permitted Acquisitions,
(c) for Capital Expenditures permitted under the terms of this Agreement, (d)
for working capital and (e) for other lawful corporate purposes.
2.16. Collateral and Collateral Call.
(a) Collateral. Payment of the Obligations will be secured by (i) a first
----------
perfected security interest in 100% of the Capital Stock of the Subsidiaries of
the Borrower and 100% of the Capital Stock of the Borrower, (ii) subject to
Permitted Liens and Section 6.15 hereof, a first perfected security interest in
all of the existing and future accounts (including without limitation, the
Tenant Leases), equipment, inventory and general intangibles (including all
existing and future Tenant Leases, and excluding any Interest Rate Protection
Agreement to which any Lender is a party, motor vehicles, bank accounts,
intellectual property and chattel paper) of the Borrower and its Subsidiaries,
(iii) Guaranties of the Obligations by each Guarantor, (iv) in accordance with
Section 6.15 hereof, deeds of trust and/or mortgages on all real property owned
by the Borrower and each Subsidiary of the Borrower, (v) in accordance with
Section 6.15 hereof, leasehold deeds of trust and/or mortgages on Borrower's
leasehold interest under each Ground Lease (collectively, together with all
other Properties or assets of the Borrower, Subsidiaries and other Persons
securing the Obligations from time to time, the "Collateral"). The Borrower
agrees that it will, and will cause its Subsidiaries and the Parent
41
to, execute and deliver, or cause to be executed and delivered, such documents
as the Administrative Lender may from time to time reasonably request to create
and perfect a first Lien for the benefit of the Administrative Lender and the
Lenders in the Collateral.
(b) Collateral Call. The Borrower agrees: (i) upon the creation,
---------------
formation or acquisition of any direct or indirect Subsidiary of the Borrower,
to immediately pledge 100% of the Capital Stock of any such Subsidiary to secure
the Obligations, pursuant to a pledge agreement substantially in the form of
Exhibit J hereto, and to promptly deliver to the Administrative Lender all
certificates or other documentation evidencing 100% of such Capital Stock and,
if such Capital Stock is stock of a corporation, together with stock powers
executed in blank and (ii) to, and agrees to cause the Subsidiaries of the
Borrower to, grant the Administrative Lender and the Lenders from time to time
at the request of the Lenders a Lien on any of the Property of the Borrower or
any Subsidiary of the Borrower that is not already subject to a perfected Lien.
In that regard, the Borrower shall, and shall cause the Subsidiaries of the
Borrower to, provide all items on Schedule 2.16 attached hereto with respect to
each leasehold property acquired by the Borrower or any Subsidiary of the
Borrower, and use best efforts to assist the Administrative Lender and the
Lenders in creating and perfecting a first Lien, subject to Permitted Liens, for
the benefit of Administrative Lender and Lenders securing the Obligations in any
other Property of the Borrower and its Subsidiaries, including, without
limitation, providing the Administrative Lender with UCC-1's, new security
agreements, mortgages, deeds of trust, appraisals, surveys, Estoppel and
Attornment Language, hazard insurance, UCC-11 searches, Tax and Lien searches,
intellectual property documentation and registration and other similar types of
documents, consents, authorizations, Licenses, instruments and agreements
relating to all Property of the Borrower and its Subsidiaries as reasonably
requested by the Administrative Lender from time to time. Notwithstanding
anything in this Section 2.16(b) to the contrary, the Borrower shall only be
obligated to grant collateral to the extent necessary to remain in compliance
with Section 6.15 hereof.
2.17. Replacement of a Lender. If any Lender has requested
compensation or reimbursement in accordance with the terms of Section 2.14
hereof or in accordance with the terms of Section 11.07 hereof and (a) such
request is not the result of any uniform changes in the statutes or regulations
for capital adequacy, (b) there exists no Default or Event of Default hereunder,
and (c) the Borrower and such Lender are unable to reach a written agreement
regarding such request within 30 days following written notice by such Lender to
the Borrower and the Administrative Lender of such request, then after the
expiration of 30 days following the delivery of the notice under Section 2.14 or
42
Section 11.07 hereof, the Borrower may replace such Lender in whole with another
Eligible Assignee reasonably acceptable to Administrative Lender pursuant to an
Assignment and Acceptance and in accordance with Section 11.04 hereof. Until
such time as any Lender is replaced by the Borrower, the Borrower shall
reimburse or compensate such Lender in accordance with the terms of Section 2.14
hereof and Section 11.07 hereof.
2.18. Conditions Precedent to the Increase of the Available Commitment.
Prior to the Conversion Date, upon written request by the Borrower to each
Lender fourteen Business Days prior to the proposed effective date of the
proposed increase, and only so long as any Lender determines in its sole
discretion in writing by notice to the Administrative Lender at least fourteen
Business Days prior to the proposed effective date of the proposed increase to
make such increase available to the Borrower, the Available Commitment shall,
subject to the further terms and conditions set forth below, increase to a
maximum of $250,000,000 in the manner set forth below:
(a) On any date of proposed increase, the representations and
warranties contained in Article V hereof are true and correct on such date,
as though made on and as of such date, except to the extent expressly made
only as of a prior date; and
(b) On any date of proposed increase, no Default or Event of Default
shall exist on any such date, and no Default or Event of Default would
result from the such increase in the Available Commitment and the
subsequent Advance to the Borrower up to the amount of the Available
Commitment; and
(c) On any date of proposed increase, there shall have occurred no
material adverse change in the Borrower's business, assets or financial
condition since December 31, 1997; and
(d) On any date of proposed increase, the sum of (i) all Advances
outstanding, plus (ii) the aggregate face amount of all outstanding Letters
of Credit (after giving effect to the proposed Letter of Credit to be made
on such date), plus (iii) (without duplication) the sum of the aggregate
reimbursement obligations, shall not exceed the Available Commitment; and
(e) The proposed increase shall occur prior to the Conversion Date and
shall not be in excess of the sum of the Available Commitment prior to such
increase plus the Unavailable Commitment prior to such increase; and
43
(f) The Administrative Lender shall have received a pro-forma
Compliance Certificate in form and substance acceptable to the Lenders and
demonstrating compliance with the terms of this Agreement and the Loan
Papers for one full year after the date of such proposed increase; and
(g) The Administrative Lender shall have received financial
projections in form and substance acceptable to the Lenders and
demonstrating compliance with the financial covenants set forth in Section
8.01 hereof throughout the term of this Agreement; and
(h) The Available Commitment shall (i) never exceed the amount of the
Aggregate Commitment, as reduced in accordance with Section 2.11 hereof and
the other terms of this Agreement, and (ii) never increase except to the
extent, and not to exceed such amount, that the Unavailable Commitment is
in excess of zero; and
(i) The Unavailable Commitment shall be reduced in accordance with
this Section 2.18 dollar for dollar for each increase in the Available
Commitment; and
(j) The Administrative Lender on behalf of each Lender shall have
received new Notes providing for such increase as well as all amendments to
deeds of trust and mortgages as the Administrative Lender shall deem
necessary to maintain its valid and perfected Lien.
Notwithstanding anything contained herein to the contrary, the limitations
placed upon assignments set forth in Section 11.04 hereof shall not apply to
proposed increases pursuant to this Section.
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit. The Borrower shall give the
Administrative Lender not less than five Business Days prior written notice of a
request for the issuance of a Letter of Credit, and the Administrative Lender
shall promptly notify each Lender of such request. Upon receipt of the
Borrower's properly completed and duly executed Applications, and subject to the
terms of such Applications and to the terms of this Agreement, the
Administrative Lender agrees to issue Letters of Credit on behalf of the
Borrower in an aggregate face amount not in excess of the lesser of (a) Letter
of Credit Commitment and (b) the remainder of the Available Commitment minus the
sum of all outstanding Advances plus the aggregate face amount of all
outstanding Letters of Credit. No Letter of Credit shall have a maturity
extending beyond the earliest of (i) the Maturity Date, or (ii) one year from
the date of its issuance, or (iii) such earlier date as may be required to
enable the Borrower to satisfy its repayment obligations under
44
Section 2.06 hereof. Subject to such maturity limitations and so long as no
Default or Event of Default has occurred and is continuing or would result from
the renewal of a Letter of Credit, the Letters of Credit may be renewed by the
Administrative Lender in its discretion. The Lenders shall participate ratably
in any liability under the Letters of Credit and in any unpaid reimbursement
obligations of the Borrower with respect to any Letter of Credit in their
Specified Percentages. The amount of the Letters of Credit issued and
outstanding and the unpaid reimbursement obligations of the Borrower for such
Letters of Credit shall reduce the amount of Available Commitment available, so
that at no time shall the sum of (i) all outstanding Advances in the aggregate,
plus (ii) the aggregate face amount of all outstanding Letters of Credit, plus
(iii) (without duplication) all outstanding reimbursement obligations related to
Letters of Credit, exceed the Available Commitment, and at no time shall the sum
of all Advances by any Lender made plus its ratable share of amounts available
to be drawn under the Letters of Credit and the unpaid reimbursement obligations
of the Borrower in respect of such Letters of Credit exceed its Specified
Percentage of the Available Commitment.
3.02. Letters of Credit Fee. In consideration for the issuance of each
Letter of Credit, the Borrower shall pay to (a) the Administrative Lender for
its own account, an application and processing fee in the amount of $350.00 on
each Letter of Credit, due and payable on the date of issuance of each Letter of
Credit, and (b) the Administrative Lender for the account of the Administrative
Lender and the Lenders in accordance with their Specified Percentages, a per
annum fee for each Letter of Credit equal to (i) the product of 1/8 of 1 percent
multiplied by the face amount of each such Letter of Credit, plus (ii) the
product of the Applicable Margin for LIBOR Advances on the date of issuance
multiplied by the face amount of each such Letter of Credit. Each fee for each
Letter of Credit under subsection (b) above shall be due and payable to the
Administrative Lender quarterly as it accrues on each Quarterly Date during the
term of the Letter of Credit and on the expiration or renewal and/or extension
of each such Letter of Credit, beginning with the first such Quarterly Date
after the issuance of each Letter of Credit and ending on the expiration date of
each such Letter of Credit or the renewal and/or extension of each such Letter
of Credit.
3.03. Reimbursement Obligations.
(a) The Borrower hereby agrees to reimburse Administrative Lender
immediately upon demand by Administrative Lender, and in immediately available
funds, for any payment or disbursement made by Administrative Lender under any
Letter of Credit. Payment shall be made by the Borrower with interest on the
amount so paid or disbursed by Administrative Lender from and including the date
payment is made under any Letter of Credit to and including the
45
date of payment, at the lesser of (i) the Highest Lawful Rate, and (ii) the sum
of the Base Rate in effect from time to time plus two percent (2%) per annum;
provided, however, that if the Borrower would be permitted under the terms of
-------- -------
Section 2.01, Section 2.02 and Section 4.02 to borrow Advances in amounts at
least equal to their reimbursement obligation for a drawing under any Letter of
Credit, a Base Advance by each Lender, in an amount equal to such Lender's
Specified Percentage, shall automatically be deemed made on the date of any such
payment or disbursement made by Administrative Lender in the amount of such
obligation and subject to the terms of this Agreement.
(b) The Borrower hereby also agrees to pay to Administrative Lender
immediately upon demand by Administrative Lender and in immediately available
funds, as security for their reimbursement obligations in respect of the Letters
of Credit under Section 3.03(a) hereof and any other amounts payable hereunder
and under the Notes, an amount equal to the aggregate amount available to be
drawn under Letters of Credit then outstanding, irrespective of whether the
Letters of Credit have been drawn upon, upon an Event of Default. Any such
payments shall be deposited in a separate account designated "Pinnacle Special
Account" or such other designation as Administrative Lender shall elect. All
such amounts deposited with Administrative Lender shall be and shall remain
funds of the Borrower on deposit with Administrative Lender and may be invested
by Administrative Lender as Administrative Lender shall determine. Such amounts
may not be used by Administrative Lender to pay the drawings under the Letters
of Credit; however, such amounts may be used by Administrative Lender as
reimbursement for Letter of Credit drawings which Administrative Lender has
paid. If any amounts in the Pinnacle Special Account shall have been deposited
upon the occurrence of an Event of Default only and such Event of Default shall
have been subsequently cured or waived and no other Event of Default exists, the
Borrower shall be relieved of its obligations under this Section 3.03(b) until
an Event of Default once again occurs. During the existence of an Event of
Default but after the expiration of any Letter of Credit that was not drawn
upon, the Borrower may direct the Administrative Lender to use any cash
collateral for any such expired Letter of Credit, if any, to reduce the amount
of the Obligations. Any amounts remaining in the Pinnacle Special Account,
after the date of the expiration of all Letters of Credit and after all
Obligations have been paid in full, shall be repaid to the Borrower promptly
after such expiration and such payment in full.
(c) The obligations of the Borrower under this Section 3.03 will continue
until all Letters of Credit have expired and all reimbursement obligations with
respect thereto have been paid in full by the Borrower and until all other
Obligations shall have been paid in full.
46
(d) The Borrower shall be obligated to reimburse Administrative Lender
upon demand for all amounts paid under the Letters of Credit as set forth in
Section 3.03(a) hereof; provided, however, if the Borrower for any reason fails
to reimburse Administrative Lender in full upon demand, whether by borrowing
Advances to pay such reimbursement obligations or otherwise, the Lenders shall
reimburse Administrative Lender in accordance with each Lender's Specified
Percentage for amounts due and unpaid from the Borrower as set forth in Section
3.04 hereof; provided, however, that no such reimbursement made by the Lenders
shall discharge the Borrower's obligations to reimburse Administrative Lender.
(e) The Borrower shall indemnify and hold Administrative Lender or any
Lender, its officers, directors, representatives and employees harmless from
loss for any claim, demand or liability which may be asserted against
Administrative Lender or such indemnified party in connection with actions taken
under the Letters of Credit or in connection therewith (INCLUDING LOSSES
RESULTING FROM THE NEGLIGENCE OF ADMINISTRATIVE LENDER OR SUCH INDEMNIFIED
PARTY), and shall pay Administrative Lender for reasonable fees of attorneys
(who may be employees of Administrative Lender) and legal costs paid or incurred
by Administrative Lender in connection with any matter related to the Letters of
Credit, except for losses and liabilities incurred as a direct result of the
gross negligence or wilful misconduct of Administrative Lender or such
indemnified party. If the Borrower for any reason fails to indemnify or pay
Administrative Lender or such indemnified party as set forth herein in full, the
Lenders shall indemnify and pay Administrative Lender upon demand, in accordance
with each Lender's Specified Percentage of such amounts due and unpaid from the
Borrower. The provisions of this Section 3.03(e) shall survive the termination
of this Agreement.
3.04. Lenders' Obligations. Each Lender agrees, unconditionally and
irrevocably to reimburse Administrative Lender (to the extent Administrative
Lender is not otherwise reimbursed by the Borrower in accordance with Section
3.03(a) hereof) on demand for such Lender's Specified Percentage of each draw
paid by Administrative Lender under any Letter of Credit. All amounts payable
by any Lender under this subsection shall include interest thereon at the
Federal Funds Rate, from the date of the applicable draw to the date of
reimbursement by such Lender. No Lender shall be liable for the performance or
nonperformance of the obligations of any other Lender under this Section. The
obligations of the Lenders under this Section shall continue after the Maturity
Date and shall survive termination of any Loan Papers.
47
3.05. Administrative Lender's Obligations.
(a) Administrative Lender makes no representation or warranty, and assumes
no responsibility with respect to the validity, legality, sufficiency or
enforceability of any Application or any document relative thereto or to the
collectibility thereunder. Administrative Lender assumes no responsibility for
the financial condition of the Borrower and its Subsidiaries or for the
performance of any obligation of the Borrower. Administrative Lender may use
its discretion with respect to exercising or refraining from exercising any
rights, or taking or refraining from taking any action which may be vested in it
or which it may be entitled to take or assert with respect to any Letter of
Credit or any Application.
(b) Except as set forth in subsection (c) below, Administrative Lender
shall be under no liability to any Lender, with respect to anything the
Administrative Lender may do or refrain from doing in the exercise of its
judgment, the sole liability and responsibility of Administrative Lender being
to handle each Lender's share on as favorable a basis as Administrative Lender
handles its own share and to promptly remit to each Lender its share of any sums
received by Administrative Lender under any Application. Administrative Lender
shall have no duties or responsibilities except those expressly set forth herein
and those duties and liabilities shall be subject to the limitations and
qualifications set forth herein.
(c) Neither Administrative Lender nor any of its directors, officers, or
employees shall be liable for any action taken or omitted (whether or not such
action taken or omitted is expressly set forth herein) under or in connection
herewith or any other instrument or document in connection herewith, except for
gross negligence or willful misconduct, and no Lender waives its right to
institute legal action against Administrative Lender for wrongful payment of any
Letter of Credit due to Administrative Lender's gross negligence or willful
misconduct. Administrative Lender shall incur no liability to any Lender, the
Borrower or any Affiliate of the Borrower or Lender in acting upon any notice,
document, order, consent, certificate, warrant or other instrument reasonably
believed by Administrative Lender to be genuine or authentic and to be signed by
the proper party.
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to Closing and the Initial Advance. The
obligation of each Lender to sign this Agreement and to make the initial Advance
is subject to receipt by the Administrative Lender of each of the following, in
form and substance satisfactory to the Administrative Lender, with a copy
(except for the Notes) for each Lender:
48
(a) A loan certificate of the Borrower and the Parent certifying as to the
accuracy of their representations and warranties in the Loan Papers, certifying
that no Default has occurred, and including a certificate of incumbency with
respect to each Authorized Officer, and including (i) a copy of the Articles of
Incorporation of the Borrower and the Parent, certified to be true, complete and
correct by the secretary of state of its state of incorporation, (ii) a copy of
the By-Laws of the Borrower and the Parent, as in effect on the Closing Date,
(iii) a copy of the resolutions of the Borrower and the Parent authorizing them
to execute, deliver and perform this Agreement, the Notes and the other Loan
Papers to which each of them is a party, and (iv) a copy of a certificate of
good standing and a certificate of existence for the Borrower's and the Parent's
state of incorporation and each state in which they are or should be qualified
to do business;
(b) duly executed Notes, payable to the order of each Lender and in an
amount for each Lender equal to its Specified Percentage of the Aggregate
Commitment;
(c) duly executed and completed confirmation agreement confirming
obligations under (i) pledge agreements by the Parent; (ii) the Guaranty of the
Obligations executed by the Parent; (iii) Security Agreement by the Borrower and
the Parent granting the Lenders a lien and security interest in all assets owned
by the Borrower and the Parent; and (iv) all other Loan Papers, including
without limitation, all mortgages, deeds of trust, and deeds to secure debt duly
filed in all required locations and each item required to be delivered on
Schedule 2.16 hereto, except those Loan Papers specifically agreed to in Section
6.15;
(d) copies of all financing statements filed against the Borrower or
Parent, as debtor;
(e) opinions of counsel to the Borrower and the Parent addressed to the
Lenders and in form and substance satisfactory to the Lenders, dated the Closing
Date;
(f) copies of insurance binders or certificates covering the assets of the
Borrower and the Parent, and meeting the requirements of Section 6.05 hereof;
(g) reimbursement for Administrative Lender of its reasonable fees and
expenses and for Special Counsel's reasonable fees and expenses rendered through
the date hereof;
(h) evidence that all corporate proceedings of the Borrower and the Parent
taken in connection with the transactions contemplated by this Agreement and the
other Loan Papers shall be reasonably satisfactory in form and substance to the
Lenders and Special Counsel; and the Lenders shall have received copies of all
documents or other evidence which the Administrative Lender,
49
Special Counsel or any Lender may reasonably request in connection with such
transactions;
(i) copies of the following financial statements for the Borrower (and as
applicable, the Parent), as of and for the period ended December 31, 1997; (i)
balance sheets of the Borrower and the Parent as of the end of such period, and
(ii) statements of income and changes in cash for such period; all in reasonable
detail and certified by an Authorized Officer to the best of his knowledge to
present fairly in all material respects the consolidated financial position of
the Borrower and the results of operations for the period then ended and, except
as noted therein, to be in accordance with GAAP (other than footnotes thereto);
(j) evidence on the Closing Date that ABRY has funded since December 31,
1997 capital contributions of at least $20,000,000 to be used by the Borrower to
consummate Permitted Acquisitions (which $20,000,000 includes $12,500,000 in
Subordinated Debt owed by the Parent to ABRY), that Borrower has received a
minimum of $10,000,000 in unfunded committed capital from ABRY and executed copy
of the Capital Contribution Agreement in the form of Exhibit N hereto;
(k) evidence that the Parasite Transaction has closed;
(l) a duly completed Compliance Certificate evidencing no Default or Event
of Default as of the Closing Date; and
(l) in form and substance satisfactory to the Lenders and Special Counsel,
such other documents, instruments and certificates as the Administrative Lender
or any Lender may reasonably require in connection with the transactions
contemplated hereby, including without limitation the status, organization or
authority of the Borrower, and the enforceability of and security for the
Obligations.
4.02. Conditions Precedent to All Advances and Letters of Credit. The
obligation of each Lender to make each Advance hereunder and the obligation of
the Administrative Lender to issue any Letter of Credit shall be subject to the
further conditions precedent that on the date of such Advance or such issuance
of such Letter of Credit:
(a) All of the representations and warranties of the Borrower under this
Agreement shall be true and correct at such time in all material respects, both
before and after giving effect to the application of the proceeds of the Advance
or the issuance of the Letter of Credit, except those representations and
warranties that specifically speak as of a particular date;
(b) The incumbency of the Authorized Officers shall be as stated in the
certificate of incumbency delivered in the Borrower's
50
loan certificate pursuant to Section 4.01(a) or as subsequently modified and
reflected in a certificate of incumbency delivered to the Administrative Lender.
The Lenders may, without waiving this condition, consider it fulfilled and a
representation by the Borrower made to such effect if no written notice to the
contrary, dated on or before the date of such Advance or the issuance of such
Letter of Credit, is received by the Administrative Lender from the Borrower
prior to the making of such Advance or such Letter of Credit;
(c) There shall not exist a Default hereunder or an Event of Default
hereunder and none shall exist as a result of making any such Advance or such
Letter of Credit, and the Administrative Lender shall have received written or
telephonic certification thereof by an Authorized Officer (which certification,
if telephonic, shall be followed promptly by written certification);
(d) There shall have occurred no Material Adverse Change since September
30, 1997;
(e) In the case of each Letter of Credit, Borrower shall have delivered to
the Administrative Lender a duly executed and complete Application acceptable to
Administrative Lender; and
(f) The aggregate outstanding Advances, after giving effect to such
proposed Advance, plus the sum of the face amount of all outstanding Letters of
Credit, shall not exceed the Available Commitment.
4.03. Conditions Precedent to Advances for Permitted Acquisitions. The
obligation of each Lender to make each Advance (including the initial Advance)
where any proceeds of such Advance will be used for a Permitted Acquisition,
including without limitation, the Parasite Transaction, shall be subject to the
further conditions precedent that the Borrower has complied with all terms and
provisions of Sections 6.15(c) and 6.16 hereof.
ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Representations and Warranties. The Borrower hereby represents
and warrants to each Lender as follows:
(a) The respective jurisdictions of incorporation and percentage ownership
of the Subsidiaries of the Parent by the Parent and the Borrower on the Closing
Date and listed on Schedule 5.01(a) hereto are true and correct. Each of the
Parent, the Borrower and its Subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of its state of
organization. Each of the Parent, the Borrower and its Subsidiaries has the
corporate power and authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted. Each of the Parent, the
Borrower and its
51
Subsidiaries is duly qualified, in good standing and authorized to do business
in each jurisdiction in which the character of its Properties or the nature of
its business requires such qualification or authorization, except where the
failure to so qualify would not cause a Material Adverse Change.
(b) The Borrower has corporate power and has taken all necessary corporate
action to authorize it to borrow hereunder. Each of the Parent, the Borrower
and its Subsidiaries has corporate power and has taken all necessary corporate
action to execute, deliver and perform the Loan Papers to which it is party in
accordance with the terms thereof, and to consummate the transactions
contemplated thereby. Each Loan Paper has been duly executed and delivered by
the Parent, the Borrower or such Subsidiary executing it. Each of the Loan
Papers to which the Parent, the Borrower, and its Subsidiaries are party is a
legal, valid and binding respective obligation of the Parent, the Borrower or
such Subsidiary, as applicable, enforceable in accordance with its terms,
subject, to enforcement of remedies, to the following qualifications: (i)
equitable principles generally, and (ii) bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Parent, the Borrower or any Subsidiary of the
Borrower).
(c) The execution, delivery and performance by the Parent, the Borrower and
its Subsidiaries of the other Loan Papers to which they are respectively a
party, and the consummation of the transactions contemplated thereby, do not and
will not (i) require any consent or approval not already obtained, (ii) violate
any Applicable Law, (iii) conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws of the Parent, the
Borrower or any Subsidiary of the Borrower, or under any material License,
indenture, agreement or other instrument, to which the Parent, the Borrower or
any Subsidiary of the Borrower is a party or beneficiary of, or by which they or
their respective Properties may be bound, or (iv) result in or require the
creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Parent, the Borrower or any Subsidiary of the
Borrower, except Permitted Liens.
(d) The Parent, the Borrower and its Subsidiaries are primarily engaged in
the operation of leasing and subleasing towers and tower sites, and pursuing
activities related thereto.
(e) All material Licenses have been duly authorized and obtained, and are
in full force and effect. The Parent, the Borrower and its Subsidiaries are and
will continue to be in compliance in all material respects with all provisions
thereof. On the Closing Date, no material License is the subject of any pending
or, to the best of the Borrower's knowledge, threatened challenge or revocation.
After the Closing Date, no material
52
License is the subject of any pending or, to the best of the Borrower's
knowledge, threatened challenge or revocation, which such event could cause a
Material Adverse Change. The Parent, the Borrower and its Subsidiaries are not
required to obtain any material License that has not already been obtained from,
or effect any material filing or registration that has not already been effected
with, the FCC, the FAA or any other federal, state or local regulatory authority
in connection with the execution and delivery of this Agreement or any other
Loan Paper, or the performance thereof (other than any enforcement of remedies
by the Administrative Lender on behalf of the Lenders), in accordance with their
respective terms, including any borrowings hereunder.
(f) The Parent, the Borrower and its Subsidiaries are in compliance in all
material respects with all Applicable Laws. The Parent, the Borrower and its
Subsidiaries have duly and timely filed all reports, statements and filings that
are required to be filed by any of them under the Communications Act, and are in
all material respects in compliance therewith, including without limitation the
rules and regulations of the FCC and FAA. Except as set forth on Schedule
5.01(f) hereto, as of the Closing Date, the Borrower is not aware of any event
or circumstance constituting noncompliance (or any Person alleging
noncompliance) with any rule or regulation of the FAA. After the Closing Date,
the Borrower is not aware of any event or circumstance constituting
noncompliance (or any Person alleging noncompliance) with any rule or regulation
of the FAA, which such event or circumstance could cause a Material Adverse
Change.
(g) The Parent, the Borrower and its Subsidiaries have good and
indefeasible title to, or a valid leasehold interest in, all of their material
assets. None of their assets are subject to any Liens, except Permitted Liens.
As of the Closing Date, no financing statement or other Lien filing authorized
by the Parent, the Borrower or any Subsidiary of the Borrower (except relating
to Permitted Liens) is on file in any state or jurisdiction that names the
Parent, the Borrower or any of its Subsidiaries as debtor or covers (or purports
to cover) any assets of the Parent, the Borrower or any of its Subsidiaries.
After the Closing Date, no financing statement or other Lien filing authorized
by the Parent, the Borrower or any Subsidiary of the Borrower (except relating
to Permitted Liens) is on file in any state or jurisdiction that names the
Parent, the Borrower or any of its Subsidiaries as debtor or covers (or purports
to cover) any assets of the Parent, the Borrower or any of its Subsidiaries,
which such financing statement or other Lien filing could cause a Material
Adverse Change. The Parent, the Borrower and its Subsidiaries have not signed
any such financing statement or filing, nor any security agreement authorizing
any Person to file any such financing statement or filing.
53
(h) On the Closing Date, except as reflected on Schedule 5.01(h) hereto,
there is no action, suit, proceeding or any other Litigation pending against,
or, to the best of the Borrower's knowledge, threatened against the Parent, the
Borrower or any of its Subsidiaries, or in any other manner relating directly
and materially adversely to the Parent, the Borrower, any of its Subsidiaries,
or any of their material Properties, in any court or before any arbitrator of
any kind or before or by any governmental body. On each date after the Closing
Date on which this representation is deemed to be made, there is no action,
suit, proceeding or any other Litigation pending against, or, to the best of the
Borrower's knowledge, threatened against the Parent, the Borrower or any of its
Subsidiaries, or in any other manner relating to the Parent, the Borrower, any
of its Subsidiaries, or any of their Properties, in any court or before any
arbitrator of any kind or before or by any governmental body, which could
reasonably be expected to cause a Material Adverse Change.
(i) All federal, state and other Tax returns of the Parent, the Borrower
and its Subsidiaries required by law to be filed have been duly filed and all
federal, state and other Taxes, assessments and other governmental charges or
levies upon the Parent, the Borrower, its Subsidiaries or any of their
Properties, income, profits and assets, which are due and payable, have been
paid, except those that are diligently contested in good faith by the Borrower
and for which a reserve has been established in accordance with GAAP, and no
Lien (other than a Permitted Lien) has attached and no foreclosure, distraint,
sale or similar proceedings have been commenced.
(j) The Borrower has furnished or caused to be furnished to the Lenders
copies of its financial statements at December 31, 1996 and unaudited financial
statements at December 31, 1997, which are prepared in good faith and complete
in all material respects and present fairly in all material respects and in
accordance with GAAP (except, with respect to the financial statements delivered
prior to the Closing Date, as noted therein), the financial position of the
Parent, the Borrower and its Subsidiaries as at such dates and the results of
operations for the periods then ended. The Parent, the Borrower and its
Subsidiaries have no material liabilities, contingent or otherwise, nor material
losses, except as disclosed in writing to the Lenders prior to the Closing Date
or as disclosed on any subsequent financial statements. On the Closing Date
after giving effect to the Advances made on such date, each of the Parent, the
Borrower and its Subsidiaries is Solvent.
(k) Since the date of the most recent financial statements delivered to the
Lenders, no event or circumstances have occurred or arisen that could constitute
a Material Adverse Change.
(l) None of the Borrower or its Controlled Group maintains or contributes
to any Plan other than those disclosed to the
54
Administrative Lender in writing. Each such Plan is in compliance in all
material respects with the applicable provisions of ERISA, the Code, and any
other applicable Federal or state law, rule or regulation. With respect to each
Plan of the Borrower and each member of its Controlled Group (other than a
Multiemployer Plan), all reports required under ERISA or any other Applicable
Law to be filed with any governmental authority, the failure of which to file
could reasonably result in liability of the Borrower or any member of its
Controlled Group in excess of $100,000, have been duly filed. All such reports
are true and correct in all material respects as of the date given. No such
Plan of the Borrower or any member of its Controlled Group has any accumulated
funding deficiency (as defined in Section 412(a) of the Code) (without regard to
any waiver granted under Section 412 of the Code), nor has any funding waiver
from the Internal Revenue Service been received or requested. None of the
Borrower or any member of its Controlled Group has failed to make any
contribution or pay any amount due or owing as required by Section 412 of the
Code or Section 302 of ERISA or the terms of any such Plan prior to the due date
under Section 412 of the Code and Section 302 of ERISA. There has been no ERISA
Event or any event requiring disclosure under Section 4041(c)(3)(C), 4068(f),
4063(a) or 4043(b) of ERISA with respect to any Plan or trust of the Borrower or
any member of its Controlled Group since the effective date of ERISA. The value
of the assets of each Plan (other than a Multiemployer Plan) of the Borrower and
each member of its Controlled Group equaled or exceeded the present value of the
benefit liabilities, as defined in Title IV of ERISA, of each such Plan as of
the most recent valuation date using Plan actuarial assumptions at such date.
There are no pending or, to the best of the Borrower's knowledge, threatened
claims, lawsuits or actions (other than routine claims for benefits in the
ordinary course) asserted or instituted against, and neither the Borrower nor
any member of its Controlled Group has knowledge of any threatened Litigation or
claims against, (i) the assets of any Plan or trust or against any fiduciary of
a Plan with respect to the operation of such Plan, or (ii) the assets of any
employee welfare benefit plan within the meaning of Section 3(1) or ERISA, or
against any fiduciary thereof with respect to the operation of any such plan.
None of the Borrower or any member of its Controlled Group has engaged in any
prohibited transactions, within the meaning of Section 406 of ERISA or Section
4975 of the Code, in connection with any Plan. None of the Borrower or any
member of its Controlled Group, nor has incurred or reasonably expects to incur
(A) any liability under Title IV of ERISA (other than premiums due under Section
4007 of ERISA to the PBGC), (B) any withdrawal liability (and no event has
occurred which with the giving of notice under Section 4219 of ERISA would
result in such liability) under Section 4201 of ERISA as a result of a complete
or partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from
a Multiemployer Plan, or (C) any liability under Section 4062 of ERISA to the
PBGC or to a trustee appointed under Section 4042 of ERISA. None of the
Borrower, any member of its
55
Controlled Group, or any organization to which the Borrower or any member of its
Controlled Group is a successor or parent corporation within the meaning of
ERISA Section 4069(b), has engaged in a transaction within the meaning of ERISA
Section 4069. None of the Borrower or any member of its Controlled Group
maintains or has established any welfare benefit plan within the meaning of
Section 3(1) of ERISA which provides for continuing benefits or coverage for any
participant or any beneficiary of any participant after such participant's
termination of employment except as may be required by the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA") and the regulations
thereunder, and at the expense of the participant or the beneficiary of the
participant, or retiree medical liabilities. Each of the Borrower and its
Controlled Group which maintains a welfare benefit plan within the meaning of
Section 3(1) of ERISA has complied in all material respects with any applicable
notice and continuation requirements of COBRA and the regulations thereunder.
(m) The Borrower is not engaged principally or as one of its important
activities in the business of extending credit for the purpose of purchasing or
carrying any margin stock within the meaning of Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System, and no part of the proceeds of
the Advances will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock. No
assets of the Parent, the Borrower and its Subsidiaries are margin stock, and
none of the Pledged Stock is margin stock. None of the Parent, the Borrower and
its Subsidiaries, nor any agent acting on their behalf, have taken or will
knowingly take any action which might cause this Agreement or any Loan Papers to
violate any regulation of the Board of Governors of the Federal Reserve System
or to violate the Securities Exchange Act of 1934, in each case as in effect now
or as the same may hereafter be in effect.
(n) As of the Closing Date, the Parent, the Borrower and its Subsidiaries
are in compliance in all material respects with all of the provisions of their
articles of incorporation and by-laws, and no event has occurred or failed to
occur, which has not been remedied or waived, the occurrence or non-occurrence
of which constitutes, or which with the passage of time or giving of notice or
both would constitute, (i) an Event of Default or (ii) a default by the Parent,
the Borrower or any of its Subsidiaries under any material indenture, agreement
or other instrument, or any judgment, decree or order to which the Parent, the
Borrower or any of its Subsidiaries is a party or by which they or any of their
material Properties is bound. After the Closing Date, the Parent, the Borrower
and its Subsidiaries are in compliance in all material respects with all of the
provisions of their articles of incorporation and by-laws, and no event has
occurred or failed to occur, which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, or which with the passage of
56
time or giving of notice or both would constitute, (i) an Event of Default or
(ii) a default by the Parent, the Borrower or any of its Subsidiaries under any
material indenture, agreement or other instrument, or any judgment, decree or
order to which the Parent, the Borrower or any of its Subsidiaries is a party or
by which they or any of their material Properties is bound, that could
reasonably be expected to cause a Material Adverse Change.
(o) The Borrower is not required to register under the provisions of the
Investment Company Act of 1940, as amended. Neither the entering into or
performance by the Borrower of this Agreement nor the issuance of the Notes
violates any provision of such act or requires any consent, approval, or
authorization of, or registration with, the Securities and Exchange Commission
or any other governmental or public body of authority pursuant to any provisions
of such act.
(p) On the Closing Date, none of the Borrower nor any Subsidiary of the
Borrower has any actual knowledge or reason to believe that any substance deemed
hazardous by any applicable Environmental Law, has been installed on any real
property now owned by the Parent, the Borrower or any of its Subsidiaries,
except (i) for hazardous substances the presence of which is not in violation of
law and (ii) as disclosed to the Lenders. After the Closing Date, none of the
Parent, the Borrower nor any Subsidiary of the Borrower has any actual knowledge
or reason to believe that any substance deemed hazardous by any applicable
Environmental Law, has been installed in violation of law on any real property
now owned by the Parent, the Borrower or any of its Subsidiaries except as
disclosed to the Lenders and which would not, in the reasonable judgment of the
Borrower, cause a Material Adverse Change. As of the Closing Date, the Borrower
and its Subsidiaries are not in violation of or subject to any existing, pending
or, to the best of the Borrower's knowledge, threatened investigation or inquiry
by any governmental authority or to any material remedial obligations under any
applicable Environmental Laws, and this representation and warranty would
continue to be true and correct following disclosure to the applicable
governmental authorities of all relevant facts, conditions and circumstances, if
any, pertaining to any real property of the Parent, the Borrower and its
Subsidiaries. After the Closing Date, the Parent, the Borrower and its
Subsidiaries are not in violation of or subject to any existing, pending or, to
the best of the Borrower's knowledge, threatened investigation or inquiry by any
governmental authority or to any material remedial obligations under any
applicable Environmental Laws which could cause a Material Adverse Change, and
this representation and warranty would continue to be true and correct following
disclosure to the applicable governmental authorities of all relevant facts,
conditions and circumstances, if any, pertaining to any real property of the
Parent, the Borrower and its Subsidiaries. The Parent, the Borrower and its
Subsidiaries are not required to obtain any permits, Licenses or similar
57
authorizations to construct, occupy, operate or use any buildings, improvements,
fixtures, and equipment forming a part of any real property of the Parent, the
Borrower or any Subsidiary of the Borrower by reason of any applicable
Environmental Laws, except those that have been obtained. As of the Closing
Date, the Borrower and its Subsidiaries have no actual knowledge or reason to
believe, after reasonable investigation, that any hazardous substances or solid
wastes have been disposed of or otherwise released on or to the real property of
the Parent, the Borrower or any of its Subsidiaries in violation of any
applicable Environmental Law. After the Closing Date, the Parent, the Borrower
and its Subsidiaries have no actual knowledge or reason to believe, that any
hazardous substances or solid wastes have been disposed of or otherwise released
on or to the real property of the Parent, the Borrower or any of its
Subsidiaries, within the meaning of the applicable Environmental Laws, except as
disclosed to the Lenders and which such disposal or release would not cause a
Material Adverse Change.
(q) The agreements evidencing obligations with respect to Capital Leases
have been duly authorized, executed and delivered by the Parent, Borrower or its
Subsidiaries, as applicable, and (to the best of the Borrower's knowledge) the
other parties thereto. Except as disclosed to each Lender, there is no
Litigation, or, to the best of the Borrower's knowledge, threatened Litigation
or pending or threatened claim of breach or default, with respect to any such
Capital Lease obligations that could be expected to adversely affect any such
lease or contract. There is no Litigation, or, to the best of the Borrower's
knowledge, threatened Litigation or pending or threatened claim of breach or
default, with respect to any loan agreement or document evidencing any Debt for
Borrowed Money of the Parent, the Borrower, or their Subsidiaries that has not
been disclosed to Lenders. The Borrower has no knowledge of any default by any
tenant or tenants under any Tenant Leases which aggregate five percent or more
of the revenues of the Borrower and its Subsidiaries, except as disclosed to the
Lenders. The Borrower has no notice of or belief that any party to any material
Capital Lease is contemplating a breach, default or termination for any reason
of such contract or lease, except as disclosed to the Lenders. As of the
Closing Date, the Borrower has provided, or caused to be provided, to the
Administrative Lender complete and correct copies of or access to the Capital
Leases, all as amended, together with all exhibits and schedules thereto.
(r) All Pledged Stock has been duly authorized and validly issued, and is
fully paid and nonassessable. The Capital Stock described on Exhibit A to
Borrower Pledge Agreement constitutes all the issued and outstanding Capital
Stock of the Subsidiaries of the Borrower or the Subsidiaries of another
Subsidiary, except such shares that have been issued after the Closing Date,
pledged to the Administrative Lender to secure the Obligations and delivered to
the Administrative Lender together with stock powers executed in
58
blank. All Capital Stock of the Borrower is pledged to the Administrative
Lender on behalf of Lenders to secure the Obligations. No Person has conversion
rights with respect to, or any subscription rights, calls, commitments or claims
of any character for, or any repurchase or redemption options relating to, the
Pledged Stock, other than those that have waived. The Pledged Stock, when
issued or sold, was either (i) registered or qualified under applicable federal
or state securities laws, or (ii) exempt therefrom.
(s) No broker's, finder's or other fee or commission will be payable by the
Borrower (other than to the Lenders hereunder) with respect to the making of the
Available Commitment or the Advances hereunder. The Borrower agrees to
indemnify and hold harmless the Administrative Lender and each Lender from and
against any claims, demand, liability, proceedings, costs or expenses asserted
with respect to or arising in connection with any such fees or commissions.
(t) No event has occurred which permits (or with the passage of time would
permit) the revocation or termination of any material License, or which could
result in the imposition of any restriction thereon of such a nature that could
reasonably be expected to constitute a Material Adverse Change.
(u) The Parent, the Borrower and its Subsidiaries have obtained all
material patents, trademarks, service-marks, trade names, copyrights, Licenses
and other rights, free from burdensome restrictions, that are necessary for the
operation of their business as presently conducted and as proposed to be
conducted. Nothing has come to the attention of the Borrower or any of its
Subsidiaries to the effect that (i) any process, method, part or other material
presently contemplated to be employed by the Parent, Borrower or any Subsidiary
of the Borrower may infringe any patent, trademark, service-xxxx, trade name,
copyright, License or other right owned by any other Person, or (ii) there is
pending or overtly threatened any claim or Litigation against or affecting the
Borrower or any Subsidiary of the Borrower contesting its right to sell or use
any such process, method, part or other material, which could reasonably be
expected to cause a Material Adverse Change.
(v) Neither this Agreement nor any other document, certificate or statement
which has been furnished to any Lender by or on behalf of the Parent, the
Borrower or any Subsidiary of the Borrower in connection herewith contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statement contained herein and therein not
misleading at the time it was furnished. On the Closing Date, there is no fact
known to the Borrower and not known to the public generally that could
reasonably be expected to cause a Material Adverse Change, which has not been
set forth in this Agreement or in the documents, certificates and statements
furnished to the
59
Lenders by or on behalf of the Borrower prior to the date hereof in connection
with the transaction contemplated hereby. On each date after the Closing Date
on which this representation is deemed to be made, there is no fact known to the
Borrower and not known to the public generally that could reasonably be expected
to cause a Material Adverse Change, which has not been disclosed to the Lenders
in writing.
(w) There exists no breach or default by any party under any Tenant Lease,
except (i) those disclosed to the Administrative Lender in writing, and (ii)
breaches of any Tenant Lease, or all breaches of Tenant Leases in the aggregate,
that could not cause a Material Adverse Change. All Tenant Leases in existence
on the Closing Date are listed on Schedule 5.01(w) hereto, together with the
lease rate for each such Tenant Lease, the date of termination of each such
Tenant Lease, and whether such Tenant Lease is a Primary Non-Conforming Tenant
Lease or a Secondary Non-Conforming Tenant Lease. No Tenant Lease is a Primary
Non-Conforming Tenant Lease or a Secondary Non-Conforming Tenant Lease, except,
if the Borrower is in compliance with Section 6.15(c) below, the Borrower may
have Primary Non-Conforming Tenant Leases and Secondary Non-Conforming Tenant
Leases that are disclosed to the Lenders in connection with Section 7.07 below
and accurately included in all calculations pursuant to Sections 6.15(a) and (c)
below.
(x) All Ground Leases are in full force and effect, and, as of the Closing
Date, there exists no breach or default by any party under any Ground Lease,
except those disclosed to the Administrative Lender in writing. All Ground
Leases in existence on the Closing Date are listed on Schedule 5.01(x) hereto,
together with the lease rate for each such Ground Lease, the date of termination
of each such Ground Lease and the Tower Cash Flow generated from the Tower on
each such Ground Lease, in each case, as of the Closing Date. No Ground Lease
is a Non-Conforming Ground Lease except, if the Borrower is in compliance with
Section 6.15(c) below, the Borrower may have Non-Conforming Ground Leases that
are disclosed to the Lenders in connection with Section 7.07 below and
accurately included in all calculations pursuant to Sections 6.15(b) and (c)
below.
(y) Each piece of owned real property in existence on the Closing Date is
listed on Schedule 5.01(y) hereto, together with the Tower Cash Flow related to
such piece of real property. After the expiration of 90 days after the Closing
Date, all real property owned by the Borrower or any Subsidiary for more than 90
days is subject to a mortgage and/or deed of trust and otherwise complies with
all requirements set forth with respect to owned real property in Section 6.15
hereof.
(z) Parent (i) qualifies as a real estate investment trust, as defined in
Section 856(a) of the Code, and satisfies the conditions and limitations set
forth in Sections 856(b) and 856(c)
60
of the Code, (ii) has not engaged in any "prohibited transactions" as defined in
Section 857(b)(6)(B)(iii) and (C) of the Code and (iii) for its current "tax
year" (as defined in the Code) is and for all prior tax years subsequent to its
election to be a real estate investment trust has been entitled to a dividends
paid deduction under the requirements of Section 857 of the Code. Borrower and
each of the Subsidiaries of Borrower is a Qualified REIT Subsidiary.
(aa) On each date after the Closing Date on which this representation is
deemed to be made, no event has occurred and no circumstance exists, which by
itself or aggregated together with all other such events or circumstances is
likely to (i) reduce Tower Cash Flow in the aggregate for all Towers by five
percent or more for a period in excess of three months, or (ii) otherwise cause
a Material Adverse Change.
5.02. Survival of Representations and Warranties. All representations
and warranties made under this Agreement and the other Loan Papers shall be
deemed to be made at and as of the Closing Date and at and as of the date of
each Advance, and each shall be true and correct in all material respects when
made. All such representations and warranties shall survive, and not be waived
by, the execution hereof by any Lender, any investigation or inquiry by any
Lender, or by the making of any Advance under this Agreement.
ARTICLE VI. GENERAL COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Available Commitment or any Letter of Credit is outstanding (whether or not the
conditions to borrowing have been or can be fulfilled):
6.01. Preservation of Existence and Similar Matters. The Borrower
shall, and shall cause each Subsidiary of the Borrower and the Parent to:
(a) preserve and maintain, or timely obtain and thereafter preserve and
maintain, its existence and material rights, franchises, authorizations,
consents, privileges and all other material Licenses from federal, state and
local governmental bodies and any Tribunal (regulatory or otherwise); and
(b) qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its Properties or the nature of its
business requires such qualification or authorization, except where the failure
to do so would not cause a Material Adverse Change.
61
6.02. Business; Compliance with Applicable Law and Material Agreements.
The Parent, the Borrower and its Subsidiaries shall (a) engage primarily in the
acquisition and operation of towers, and leasing and subleasing towers and tower
sites, and activities related thereto, and (b) comply in all material respects
with the requirements of all Applicable Law and all material agreement to which
each is a party.
6.03. Maintenance of Properties. The Borrower shall, and shall cause
the Parent and each Subsidiary of the Borrower to, maintain or cause to be
maintained all its material Properties necessary to the conduct of its business
(whether owned or held under lease) in reasonably good repair, working order and
condition, taken as a whole, and from time to time make or cause to be made all
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
6.04. Accounting Methods and Financial Records. The Borrower shall,
and shall cause the Parent and each Subsidiary of the Borrower to, maintain a
system of accounting established and administered in accordance with GAAP, keep
adequate records and books of account in which complete entries will be made and
all transactions reflected in accordance with GAAP, and keep accurate and
complete records of its respective assets. The Borrower and each of its
Subsidiaries shall maintain a fiscal year ending on December 31.
6.05. Insurance. The Borrower shall, and shall cause the Parent and
each Subsidiary of the Borrower to, maintain insurance from responsible
companies in such amounts and against such risks as shall be customary and usual
in the industry for companies of similar size and capability, but in no event
less than the amount and types insured as of the Closing Date, provided that,
the Borrower is permitted to self insure the replacement value of Towers having
in the aggregate at any one time insurable values not more than 5% of the
aggregate insurable values for all Towers. Each insurance policy shall provide
for at least 30 days' prior notice to the Administrative Lender of any proposed
termination or cancellation of such policy, whether on account of default or
otherwise and all property insurance shall name the Administrative Lender as
loss payee or additional insured, as appropriate.
6.06. Payment of Taxes and Claims. The Borrower shall, and shall cause
the Parent and each Subsidiary of the Borrower to, pay and discharge all Taxes,
assessments and governmental charges or levies imposed upon it or its income or
Properties prior to the date on which penalties attach thereto, and all lawful
material claims for labor, materials and supplies which, if unpaid, might become
a Lien upon any of their Properties, except those Taxes, assessments and charges
contested by the Borrower diligently in good faith, and for which adequate
reserves have been established in accordance with GAAP. The Borrower shall, and
shall cause the
62
Parent and each Subsidiary of the Borrower to, timely file all information
returns required by federal, state or local Tax authorities.
6.07. Visits and Inspections. The Borrower shall, and shall cause each
Subsidiary of the Borrower and the Parent to, promptly permit representatives of
the Administrative Lender or any Lender from time to time to (a) visit and
inspect the Properties of the Parent, the Borrower and each Subsidiary of the
Borrower as often as the Administrative Lender or any Lender shall deem
advisable, (b) inspect and make extracts from and copies of the Borrower's, the
Parent's and each Subsidiary of the Borrower's books and records, and (c)
discuss with the Parent's, the Borrower's and each Subsidiary's directors,
officers, employees and, after notice to the Borrower, the auditors of Borrower
and the Parent, its business, assets, liabilities, financial positions, results
of operations and business prospects.
6.08. Payment of Debt for Borrowed Money. The Borrower shall, and
shall cause the Parent and each Subsidiary of the Borrower to, pay its Debt for
Borrowed Money when and as the same becomes due.
6.09. Use of Proceeds. The Borrower shall use the proceeds of Advances
solely (a) on the Closing Date, to refinance existing indebtedness of the
Borrower, (b) for Permitted Acquisitions, (c) for Capital Expenditures permitted
under the terms of this Agreement, (d) for working capital and (e) for other
lawful corporate purposes.
6.10. Indemnity.
(a) The Borrower agrees to defend, protect, indemnify and hold harmless the
Administrative Lender, each Lender, each of their respective Affiliates, and
each of their respective (including such Affiliates') officers, directors,
employees, agents, attorneys, shareholders and consultants (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth herein) of each of the foregoing
(collectively, "Indemnitees") from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, whether or not such Indemnitees shall be designated a party
thereto), imposed on, incurred by, or asserted against such Indemnitees (whether
direct, indirect or consequential and whether based on any federal, state, or
local laws and regulations, under common law or at equitable cause, or on
contract, tort or otherwise, arising from or connected with the past, present or
future operations of the Borrower or its
63
predecessors in interest, in any manner relating to or arising out of this
Agreement, the Loan Papers, or any act, event or transaction or alleged act,
event or transaction relating or attendant thereto, the making of any
participations in the Advances and the management of the Advances, including in
connection with, or as a result, in whole or in part, of any negligence of
Administrative Lender or any Lender (other than those matters raised exclusively
by a participant against the Administrative Lender or any Lender and not the
Borrower), or the use or intended use of the proceeds of the Advances hereunder,
or in connection with any investigation of any potential matter covered hereby,
but excluding any claim or liability that arises as the result of the gross
negligence or willful misconduct of any Indemnitee, as finally judicially
determined by a court of competent jurisdiction (collectively, the "Indemnified
Matters").
(b) In addition, the Borrower shall periodically, upon request, reimburse
each Indemnitee for its reasonable legal and other actual expenses (including
the cost of any investigation and preparation) incurred in connection with any
Indemnified Matter. If for any reason the foregoing indemnification is
unavailable to any Indemnitee or insufficient to hold any Indemnitee harmless
with respect to Indemnified Matters, then the Borrower shall contribute to the
amount paid or payable by such Indemnitee as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only the
relative benefits received by the Borrower and the Borrower's stockholders on
the one hand and such Indemnitee on the other hand but also the relative fault
of the Borrower and such Indemnitee, as well as any other relevant equitable
considerations. The reimbursement, indemnity and contribution obligations under
this Section shall be in addition to any liability which the Borrower may
otherwise have, shall extend upon the same terms and conditions to each
Indemnitee, and shall be binding upon and inure to the benefit of any
successors, assigns, heirs and personal representatives of the Borrower, the
Administrative Lender, the Lenders and all other Indemnitees. This Section
shall survive any termination of this Agreement and payment of the Obligations.
6.11. Environmental Law Compliance. The use which the Parent, the
Borrower or any Subsidiary of the Borrower intends to make of any real Property
owned by it will not result in the disposal or other release of any hazardous
substance or solid waste on or to such real Property in violation of any
Environmental Law. As used herein, the terms "hazardous substance" and
"release" as used in this Section shall have the meanings specified in CERCLA
(as defined in the definition of applicable Environmental Laws), and the terms
"solid waste" and "disposal" shall have the meanings specified in RCRA (as
defined in the definition of applicable Environmental Laws); provided, however,
that if CERCLA or RCRA is amended so as to broaden the meaning of any term
defined thereby, such broader meaning shall apply subsequent to the effective
date
64
of such amendment; and provided further, to the extent that any other law
applicable to the Parent, the Borrower, any Subsidiary of the Borrower or any of
their Properties establishes a meaning for "hazardous substance," "release,"
"solid waste," or "disposal" which is broader than that specified in either
CERCLA or RCRA, such broader meaning shall apply. The Borrower agrees to
indemnify and hold the Administrative Lender and each Lender harmless from and
against, and to reimburse them with respect to, any and all claims, demands,
causes of action, loss, damage, liabilities, costs and expenses (including
attorneys' fees and courts costs) of any kind or character, known or unknown,
fixed or contingent, asserted against or incurred by any of them at any time and
from time to time by reason of or arising out of (a) the failure of the Parent,
the Borrower or any Subsidiary of the Borrower to perform any obligation
hereunder regarding asbestos or applicable Environmental Laws, (b) any violation
on or before the Release Date of any applicable Environmental Law in effect on
or before the Release Date, and (c) any act, omission, event or circumstance
existing or occurring on or prior to the Release Date (including without
limitation the presence on such real Property or release from such real Property
of hazardous substances or solid wastes disposed of or otherwise released on or
prior to the Release Date), resulting from or in connection with the ownership
of the real Property, regardless of whether the act, omission, event or
circumstance constituted a violation of any applicable Environmental Law at the
time of its existence or occurrence, or whether the act, omission, event or
circumstance is caused by or relates to the negligence of any indemnified
Person; provided that, the Borrower shall not be under any obligation to
indemnify the Administrative Lender or any Lender to the extent that any such
liability arises as the result of the gross negligence or willful misconduct of
such Person, as finally judicially determined by a court of competent
jurisdiction, or for any event which is both not caused by the Parent, the
Borrower or any Subsidiary of the Borrower and occurs after any foreclosure by
the Lenders on any specific Property. The provisions of this paragraph shall
survive the Release Date and shall continue thereafter in full force and effect.
6.12. Interest Rate Protection Agreements. By no later than May 1,
1998, the Borrower will enter into an Interest Rate Protection Agreement on
terms acceptable to the Administrative Lender providing for interest rate
protection for one year for 50% of the principal of the Obligations outstanding
on May 1, 1998, and the Borrower shall thereafter, until the third anniversary
of the Closing Date, maintain an Interest Rate Protection Agreement in effect at
all times on terms acceptable to the Administrative Lender and providing for an
interest rate protection for not less than 50% of the entire principal of the
Obligations.
6.13. Issuance and Pledge of Capital Stock of the Borrower. Prior to
or simultaneous with the issuance by the Borrower of any Capital Stock to any
Person, the Borrower shall,
65
and shall cause the Parent to, cause such Capital Stock to be pledged to the
Administrative Lender on behalf of Lenders to secure the Obligations in
accordance with documentation substantially in the form of Exhibit M hereto.
6.14. Continued Status as a Real Estate Investment Trust; Prohibited
Transactions. Parent (a) will continue to be qualified as a real estate
investment trust as defined in Section 856 of the Code, (b) will not engage in
any "prohibited transactions" as defined in Section 857(b)(6)(B)(iii) or (C) of
the Code, (c) will continue to satisfy the conditions and limitations set forth
in Sections 856(b) and 856(c) of the Code and (d) will do all acts necessary to
continue to be entitled to a dividend paid deduction under Section 857 of the
Code and (d) each of Borrower and each of its Subsidiaries will continue to be a
Qualified REIT Subsidiary.
6.15. Tenant Leases, Ground Leases and Fee Owned Property.
(a) Tenant Leases. The Borrower and each Subsidiary of the Borrower shall,
-------------
after the Closing Date, only enter into new Tenant Leases, acquire new Tenant
Leases or become party to any Tenant Leases which are not Primary Non-Conforming
Tenant Leases or Secondary Non-Conforming Tenant Leases, provided that, the
Borrower is permitted to have (i) Primary Non-Conforming Tenant Leases so long
as the sum of the aggregate Tenant Lease Revenues from all Primary Non-
Conforming Tenant Leases, at no time after the 90th day after the Closing Date
exceeds fifteen percent of the total revenues of the Borrower and its
Subsidiaries for the most recently completed calendar month during the term of
this Agreement, and (ii) Secondary Non-Conforming Tenant Leases, so long as the
sum of the aggregate Tenant Lease Revenues from all Secondary Non-Conforming
Tenant Leases in any calendar month does not exceed twenty percent of the total
revenues of the Borrower and its Subsidiaries for such completed calendar month.
(b) Ground Leases and Fee Owned Real Property. The Borrower and each
-----------------------------------------
Subsidiary of the Borrower shall, after the Closing Date, use its best efforts
to only enter into new Ground Leases which include provisions substantially
similar to the provisions set forth on Exhibit K hereto, or such other
provisions as are approved by the Administrative Lender in writing. The
Borrower shall use its best efforts to immediately provide the Lenders with each
item for each piece of real Property (whether leased or owned) required on
Schedule 2.16 hereto in accordance with the terms thereon prior to and
immediately after the Closing Date and prior to and immediately after each
Permitted Acquisition or other creation or acquisition of any real Property by
the Borrower or any Subsidiary of the Borrower. The Borrower shall not permit
to exist Non-Conforming Ground Leases which have aggregate Tower Cash Flow from
all Towers located on Non-Conforming Ground Leases in excess of thirty percent
of Operating Cash Flow at any time (on any date of determination) during the
term of this Agreement.
66
(c) Breach of Section 6.15(a) and (b). In the event any provision of
---------------------------------
Section 6.15(a) or (b) above is breached, subject to the last sentence of this
Section 6.15(c), the Applicable Margin shall increase by .25% per annum,
effective the date of such breach under Section 6.15(a) or (b) above, and shall
increase every 30 days thereafter (effective each 31st date following the
preceding increase) by .25% per annum (but in no event shall the interest rate
increase under this Section 6.15(c) by more than .25% per annum per 30 day
period) until the earlier of (i) compliance with this Section 6.15, or (ii) such
time as the per annum interest rate is equal to the Highest Lawful Rate (where
the interest rate will remain until the Borrower is in compliance). If, on the
date six months after the date of any breach, such breach is still in effect,
then (A) with respect to a breach under Section 6.15(a) hereof, all Tenant Lease
Revenues from any Primary Non-Conforming Tenant Lease or Secondary Non-
Conforming Tenant Lease, as applicable, in excess of the applicable percent
limitation, will be excluded from revenues for the purpose of determining EBITDA
in connection with any determination of (I) the Leverage Ratio (with respect to
Section 8.01(a) and with respect to the Applicable Margin) and the debt service
coverage ratio set forth in Section 8.01(c) hereof, and (B) with respect to a
breach under Section 6.15(b) hereof, all Tower Cash Flow from any Tower located
on a Non-Conforming Ground Lease in excess of the thirty percent limitation will
be excluded from revenues for the purpose of determining EBITDA in connection
with any determination of (I) the Leverage Ratio (with respect to Section
8.01(a) and with respect to the Applicable Margin) and the debt service coverage
ratio set forth in Section 8.01(c) hereof, and, in each case, such exclusion
from EBITDA for such purposes will continue until five Business Days after the
date the Borrower delivers to the Administrative Lender a certificate of an
Authorized Officer certifying that there exists no breach under Section 6.15(a)
and/or (b) above, in detail satisfactory to the Administrative Lender. If there
exists no Default or Event of Default upon giving effect to any exclusion from
EBITDA in accordance with the provisions set forth above, the interest rate
shall be calculated without giving effect to any increase in the Applicable
Margin set forth in this Section 6.15(c).
6.16. Acquisitions, Generally. In connection with any acquisition made
by the Borrower during the term of this Agreement, the Borrower shall with
respect to individual Permitted Acquisitions in excess of $2,000,000 and all
Permitted Acquisitions which in the aggregate exceed $10,000,000, (a) not less
than ten Business Days prior to the proposed acquisition date, deliver to
Administrative Lender (i) a detailed written description of the proposed
Permitted Acquisition in form reasonably acceptable to the Administrative
Lender, a description and location of all fee owned real property, all leasehold
property, all Towers and all other assets (together with all legal descriptions
of all real property (leasehold and fee owned) available at such time), (ii) the
address
67
of any office acquired and (iii) a copy of the purchase agreement, schedules
thereto and all related documentation (unless such schedules or documentation is
to be delivered by the seller, in which case the Borrower shall deliver drafts
and originals of such schedules and documentation promptly upon receipt by the
Borrower if later than 10 days prior to closing), and (b) prior to the
consummation of the acquisition a statement certified by an Authorized Officer
that (i) the proposed transaction complies with the definition of Permitted
Acquisition set forth in Article I hereof, and (ii) no Default or Event of
Default exists prior to or after giving effect to any requested Advance or the
consummation of such acquisition, or will exist upon consummation of the
proposed acquisition and related borrowings and transactions, together with a
Compliance Certificate computed after giving effect to such acquisition and
borrowings (provided that, in such Compliance Certificate, the Borrower may
certify as to Sections 8.01(a) and 8.01(c) hereof only, and not Sections
8.01(b), 8.01(d) and 8.01(e) hereof).
ARTICLE VII. INFORMATION COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Available Commitment or any Letter of Credit is outstanding (whether or not the
conditions to borrowing have been or can be fulfilled), the Borrower shall
furnish or cause to be furnished to each Lender:
7.01. Quarterly Financial Statements and Information. Within 45 days
after the end of each fiscal quarter, consolidated and consolidating balance
sheets of Parent, the Borrower and its Subsidiaries as at the end of such
quarter and the related consolidated and consolidating statements of income and
consolidated statements of changes in cash for such quarter and for the elapsed
portion of the year ended with the last day of such quarter, all of which shall
be certified by an Authorized Officer, to, in his or her opinion, present fairly
in all material respects, in accordance with GAAP, the financial position and
results of operations of the Parent, the Borrower and its Subsidiaries as at the
end of and for such period, and for the elapsed portion of the year ended with
the last day of such period.
7.02. Annual Financial Statements and Information; Certificate of No
Default.
(a) Within 120 days after the end of each fiscal year, a copy of (i) the
consolidated balance sheet of the Parent, the Borrower and its Subsidiaries, as
of the end of the current and prior fiscal years and (ii) consolidated
statements of earnings, statements of changes in shareholders' equity, and
statements of changes in cash as of and through the end of such fiscal year, all
of which are prepared in accordance with GAAP, and certified by independent
68
certified public accountants acceptable to the Lenders, whose opinion shall be
in scope and substance in accordance with generally accepted auditing standards
and shall be unqualified.
(b) As soon as available, but in any event within 60 days following the
end of each fiscal year, a copy of the annual consolidated operating budget of
the Borrower, the Parent, and its Subsidiaries for the succeeding fiscal year.
7.03. Compliance Certificates. At the time financial statements are
furnished pursuant to Section 7.01 and Section 7.02, a Compliance Certificate.
7.04. Copies of Other Reports and Notices.
(a) Promptly upon their becoming available, a copy of (i) all material
reports or letters submitted to the Parent, the Borrower or any Subsidiary of
the Borrower by accountants in connection with any annual, interim or special
audit, including without limitation any report prepared in connection with the
annual audit referred to in Section 7.03 hereof, and any other comment letter
submitted to management in connection with any such audit, (ii) each financial
statement, report, notice or proxy statement sent by the Parent, the Borrower or
any Subsidiary of the Borrower to stockholders generally, (iii) each regular or
periodic report and any registration statement or prospectus (or material
written communication in respect of any thereof) filed by the Parent, the
Borrower or any Subsidiary of the Borrower with any securities exchange, with
the Securities and Exchange Commission or any successor agency, and (iv) all
press releases concerning material financial aspects of the Parent, the Borrower
or any Subsidiary of the Borrower;
(b) Promptly upon becoming aware that (i) the holder(s) of any note(s) or
other evidence of indebtedness or other security of the Parent, the Borrower or
any Subsidiary of the Borrower in excess of $250,000 in the aggregate has given
notice or taken any action with respect to a breach, failure to perform, claimed
default or event of default thereunder, (ii) any party to any material Capital
Lease of the Borrower or any Subsidiary of the Borrower has given notice or
taken any action with respect to a breach, failure to perform, claimed default
or event of default thereunder, (iii) any occurrence or non-occurrence of any
event which constitutes or which with the passage of time or giving of notice or
both could constitute a material breach by the Parent, the Borrower or any
Subsidiary of the Borrower under any material agreement or instrument other than
this Agreement to which the Parent, the Borrower or any Subsidiary of the
Borrower is a party or by which any of their Properties may be bound, or (iv)
any event, circumstance or condition which could reasonably be expected to
constitute a Material Adverse Change, a written notice specifying the details
thereof (or the nature of any claimed
69
default or event of default) and what action is being taken or is proposed to be
taken with respect thereto;
(c) Promptly upon receipt thereof, information with respect to and copies
of any notices received from the FCC, the FAA or any other federal, state or
local regulatory agencies or any tribunal relating to any order, ruling, law,
information or policy that relates to a breach of or noncompliance with the
Communications Act, or might result in the payment of money by the Parent, the
Borrower or any Subsidiary of the Borrower in an amount of $250,000 or more in
the aggregate, or otherwise constitute a Material Adverse Change, or result in
the loss or suspension of any material License;
(d) Promptly upon receipt from any governmental agency, or any government,
political subdivision or other entity, any material notice, correspondence,
hearing, proceeding or order regarding or affecting the Parent, the Borrower,
any Subsidiary of the Borrower, or any of their Properties or businesses not in
the ordinary course of business, a copy of such notice, correspondence, hearing,
proceeding or order;
(e) Promptly upon and in any event within forty-eight hours after the
Borrower first has knowledge of (i) the Parent failing to (A) continue to
qualify as a real estate investment trust as defined in Section 856 of the Code
or (B) maintain its REIT Status, (ii) any act by the Parent causing the election
by the Parent or the Borrower, as applicable, to be taxed as a real estate
investment trust to be terminated, (iii) any act causing the Parent to be
subject to the taxes imposed by Section 857(b)(6) of the Code, (iv) the Parent
failing to be entitled to a dividends paid deduction under Section 857 of the
Code, (v) the Parent failing to satisfy any condition or limitation set forth in
Section 856(b) or 856(c) of the Code, (vi) any challenge by the Internal Revenue
Service to the Parent's REIT Status, (vii) the Borrower or any Subsidiary of
Borrower failing to be a Qualified REIT Subsidiary, or (viii) any challenge by
the Internal Revenue Service to the status of Borrower or any Subsidiary of
Borrower as a Qualified REIT Subsidiary, notice of any such occurrence or
circumstance; and
(f) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the assets, business, liabilities, financial position, projections, results of
operations or business prospects of the Parent, the Borrower and its
Subsidiaries that is within the Borrower's control, as the Administrative Lender
or any Lender may reasonably request.
7.05. Notice of Litigation, Default and Other Matters. Prompt notice
of the following events after the Borrower has knowledge or notice thereof:
70
(a) The commencement of all proceedings and investigations by or before the
FCC, the FAA or any other governmental body, and all other actions and
proceedings in any court or before any arbitrator involving claims for damages
(including punitive damages) in excess of $250,000 in the aggregate (after
deducting the amount with respect to the Parent, the Borrower or any Subsidiary
of the Borrower is insured), against or in any other way relating directly to
the Parent, the Borrower, any Subsidiary of the Borrower, or any of their
Properties or businesses;
(b) Promptly upon the happening of any condition or event which constitutes
a Default, a written notice specifying the nature and period of existence
thereof and what action is being taken or is proposed to be taken with respect
thereto; and
(c) Any Material Adverse Change with respect to the business, assets,
liabilities, financial position, results of operations or prospective business
of the Parent, the Borrower or any Subsidiary of the Borrower.
7.06. ERISA Reporting Requirements.
(a) Promptly and in any event (i) within 30 days after the Borrower or any
member of its Controlled Group knows or has reason to know that any ERISA Event
described in clause (a) of the definition of ERISA Event or any event described
in Section 4063(a) of ERISA with respect to any Plan of the Borrower or any
member of its Controlled Group has occurred, and (ii) within 10 days after the
Borrower or any member of its Controlled Group knows or has reason to know that
any other ERISA Event with respect to any Plan of the Borrower or any member of
its Controlled Group has occurred or a request for a minimum funding waiver
under Section 412 of the Code with respect to any Plan of the Borrower or any
member of its Controlled Group, a written notice describing such event and
describing what action is being taken or is proposed to be taken with respect
thereto, together with a copy of any notice of event that is given to the PBGC;
(b) Promptly and in any event within two Business Days after receipt
thereof by the Borrower or any member of its Controlled Group from the PBGC,
copies of each notice received by the Borrower or any member of its Controlled
Group of the PBGC's intention to terminate any Plan or to have a trustee
appointed to administer any Plan;
(c) Promptly and in any event within 30 days after the filing thereof by
the Borrower or any member of its Controlled Group with the United States
Department of Labor, the Internal Revenue Service or the PBGC, copies of each
annual and other report (including Schedule B thereto) with respect to each
Plan;
71
(d) Promptly and in any event within 30 days after receipt thereof, a copy
of any notice, determination letter, ruling or opinion the Borrower or any
member of its Controlled Group receives from the PBGC, the United States
Department of Labor or the Internal Revenue Service with respect to any Plan;
(e) Promptly, and in any event within 10 Business Days after receipt
thereof, a copy of any correspondence the Borrower or any member of its
Controlled Group receives from the Plan Sponsor (as defined by Section
4001(a)(10) of ERISA) of any Plan concerning potential withdrawal liability
pursuant to Section 4219 or 4202 of ERISA, and a statement from the chief
financial officer of the Borrower or such member of its Controlled Group setting
forth details as to the events giving rise to such potential withdrawal
liability and the action which the Borrower or such member of its Controlled
Group is taking or proposes to take with respect thereto;
(f) Notification within 30 days of any material increases in the benefits
of any existing Plan which is not a Multiemployer Plan, or the establishment of
any new Plans, or the commencement of contributions to any Plan to which the
Borrower or any member of its Controlled Group was not previously contributing;
(g) Notification within three Business Days after the Borrower or any
member of its Controlled Group knows or has reason to know that the Borrower or
any such member of its Controlled Group has or intends to file a notice of
intent to terminate any Plan under a distress termination within the meaning of
Section 4041(c) of ERISA and a copy of such notice; and
(h) Promptly after receipt of written notice of commencement thereof,
notice of all actions, suits and proceedings before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, affecting the Borrower or any member of its Controlled Group with
respect to any Plan.
7.07. Fee Owned Property, Ground Leases, Tenant Leases and Tower
Construction Advances.
(a) Monthly Compliance Certificate. Within 20 days after the end of each
------------------------------
month during the term of this Agreement, the Borrower shall provide the
Administrative Lender and each Lender with compliance certificates certified by
an Authorized Officer regarding (i) compliance by the Borrower with Section 6.15
hereof and (ii) designation of Tower Construction Advances and the related
Towers, the aggregate outstanding amount of Tower Construction Advances and
compliance with Section 8.01(e) hereof, each for the most recently completed
month, substantially in the form of Exhibit C hereto, in sufficient detail, form
---------
and substance reasonably acceptable to the Administrative Lender.
72
(b) Quarterly Information Regarding Fee Owned Real Property, Ground Leases
----------------------------------------------------------------------
and Tenant Leases. The Borrower shall provide the Administrative Lender and
-----------------
each Lender, with quarterly updates delivered with the Compliance Certificate as
required in Section 7.03 hereof, certifying as to (i) all existing Ground Leases
and fee owned real property of the Borrower and the Subsidiaries of the
Borrower, (ii) the annual charges paid in connection with fee owned real
Property (if any) and Ground Leases of the Borrower and the Subsidiaries of the
Borrower, and the annual revenues generated by each Tower on each Ground Lease
and each fee owned real property, (iii) the termination date for each such
Ground Lease, (iv) whether there exists a material breach or default by any
party to any such Ground Lease (or alleged breach or default), (v) a list of all
Non-Conforming Ground Leases on such date (detailing the reason for non-
compliance), together with a detail of all Tower Cash Flow generated by any
Tower on all Non-Conforming Ground Leases, and any non-compliance with respect
to any requirement set forth in Section 6.15 hereof or set forth on Schedule
2.16 hereof for any fee owned real Property of the Borrower and each Subsidiary
of the Borrower, and (vi) a list of all Primary Non-Conforming Tenant Leases and
Secondary Non-Conforming Tenant Leases (detailing the reason for non-compliance)
and all Tenant Lease Revenues generated by such Primary Non-Conforming Tenant
Leases and Secondary Non-Conforming Tenant Leases, all in form and substance
acceptable to the Administrative Lender. Each such quarterly update certificate
shall be certified by an Authorized Officer that there exists no breach of
Section 6.15 hereof and that there exists no Default or Event of Default under
Section 9.01(t) hereof.
(c) Annual Information Regarding Tenant Leases. The Borrower shall provide
------------------------------------------
the Administrative Lender and each Lender, with annual updates as to all
existing Tenant Leases delivered with the annual information required by Section
7.02 hereof, such information to show the Tenant Lease Revenues with respect to
each Tenant Lease, the termination date for each such Tenant Lease, whether such
Tenant Lease is a Primary Non-Conforming Tenant Lease or a Secondary Non-
Conforming Tenant Lease (and the reason therefor), and whether there exists a
material breach or default by any party to a (i) material Tenant Lease or (ii)
group of Tenant Leases which is material, all in form and substance acceptable
to the Administrative Lender.
ARTICLE VIII. NEGATIVE COVENANTS
So long as any of the Obligations are outstanding and unpaid or the
Available Commitment or any Letter of Credit is outstanding (whether or not the
conditions to borrowing have been or can be fulfilled):
73
8.01. Financial Covenants.
(a) LEVERAGE RATIO. The Borrower shall not permit the Leverage Ratio
to be more than the following ratios at the end of any fiscal quarter of
the Borrower during the following time periods:
Period Ratio
------ -----
From the Closing Date
through June 30, 1998 8.00 to 1.00
From July 1, 1998
through December 31, 1998 6.50 to 1.00
From January 1, 1999
through June 30, 1999 6.00 to 1.00
From July 1, 1999
through December 31, 1999 5.50 to 1.00
From January 1, 2000
through December 31, 2000 5.00 to 1.00
From January 1, 2001
and thereafter 4.50 to 1.00
provided however,
(i) that in the event of a failure to meet the ratios required by this
Section 8.01(a), so long as no other Default or Event of Default exists
hereunder, ABRY may, through the Parent, not more than two times during the
term of this Agreement (in addition to those instances in which ABRY may be
required to make such a contribution pursuant to Section 2(b) of the
Capital Contribution Agreement), prior to the delivery by the Borrowe of
its Compliance Certificate in accordance with Section 7.03 hereof
evidencing such breach, make a capital contribution to enable the Borrower
to reduce the outstanding principal amount of Advances hereunder in an
amount sufficient to cure the breach under this Section 8.01(a). In the
event that the ABRY makes such capital contribution, the Borrower must
reduce the outstanding Advances hereunder by such amount, and the Borrower
may demonstrate its compliance with the financial covenant in this Section
8.01(a) by calculating such covenant (A) after such contribution has been
made, and (B) after the Obligation has been reduced by such contribution.
Notwithstanding anything in this Agreement to the contrary, the second time
that ABRY makes any capital contribution to cure any Event of Default as a
result of a violation of this Section 8.01(a) as permitted above, any such
capital contribution shall be applied in accordance with the terms of
Section 2.05(b) hereof, but shall permanently reduce the outstanding
74
Obligations either by a reduction in the Available Commitment or
application to the installments due hereunder in the inverse order of
maturity (if such payment is made after the Conversion Date); and
(ii) notwithstanding anything herein to the contrary, no Advance
constituting a Tower Construction Advance will be included in the Total
Debt calculation to determine compliance with this Section 8.01(a), but
only so long as (A) such Advance remains a Tower Construction Advance, and
(B) there is not included in the calculation of EBITDA for the purposes of
this Section 8.01(a) only, revenue attributable to any new Tower being
constructed with the proceeds of any such Tower Construction Advance for
so long as any such Tower Construction Advance remains designated as a
Tower Construction Advance, it being understood by the parties hereto
that, notwithstanding the use of Tower Construction Advances to refurbish
or replace any existing Tower, revenue attributable to such refurbished or
replacement Tower may not be included in the calculation of EBITDA to
determine compliance with this Section 8.01(a).
(b) INTEREST COVERAGE RATIO. The Borrower shall not permit at the end of
any fiscal quarter of the Borrower the ratio of (a) EBITDA for the
preceding twelve month period to (b) the difference between (i) Interest
Expense for the preceding twelve month period minus (ii) accrued interest
expense to be paid in-kind by the Borrower, the Parent or any Subsidiary
of the Borrower, to be less than the following ratios during the following
time periods:
Period Ratio
------ -----
From the Closing Date
to December 31, 1998 1.75 to 1.00
From January 1, 1999
and thereafter 2.00 to 1.00
(c) DEBT SERVICE COVERAGE RATIO. The Borrower shall not permit at the end
of any fiscal quarter of the Borrower the ratio of (a) Annualized EBITDA to
(b) Pro Forma Debt Service to be less than 1.25 to 1.00.
(d) FIXED CHARGE COVERAGE RATIO. The Borrower shall not permit at the end
of any fiscal quarter of the Borrower, the ratio of (a) EBITDA for the most
recently completed twelve month period to (b) Fixed Charges for the most
recently completed twelve month period, to be less than 1.10 to 1.00.
(e) CAPITAL EXPENDITURES FOR TOWER CONSTRUCTION. On any date of
determination, the Borrower shall not permit the aggregate
75
outstanding Tower Construction Advances to exceed the lesser of $20,000,000
or 10% of the sum of the outstanding Advances on such date of determination
plus the outstanding Letters of Credit on such date of determination.
Proceeds of all Tower Construction Advances used for preconstruction and
preacquisition expenses of the Borrower, including without limitation,
survey fees, environmental audit fees, and other expenses typically expended
by a buyer in connection with the acquisition of telecommunications towers,
shall not exceed $1,000,000 in the aggregate. Proceeds of all other Tower
Construction Advances shall be used for acquisition costs, hard costs of
construction, and any other expenses of the Borrower associated with
constructing a tower.
8.02. Debt for Borrowed Money. The Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower to, create, assume, incur or
otherwise become or remain obligated in respect of, or permit to be outstanding,
or suffer to exist any Debt for Borrowed Money, except:
(a) with respect to the Borrower and its Subsidiaries, Debt for Borrowed
Money under the Loan Papers;
(b) with respect to the Borrower, Debt for Borrowed Money described on
Schedule 8.02 hereto attached hereto in the principal amounts and as such Debt
for Borrowed Money exists as of the Closing Date;
(c) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Parent, Subordinated Debt owed
to ABRY up to a maximum aggregate amount of $12,500,000, which may be refinanced
(provided no Default or Event of Default exists or would result from the
incurrence thereof) with proceeds of one or more issuances (and refinances
thereof) of subordinated debt or equity which is on terms and conditions and
pursuant to documentation satisfactory to the SuperMajority Lenders);
(d) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower and the Parent,
unsecured Debt for Borrowed Money up to the maximum aggregate amount at any one
time outstanding of $250,000 for both the Borrower and the Parent, which Debt
may not be subject to an interest rate in excess of 13% per annum;
(e) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower and the Parent,
secured Debt for Borrowed Money not to exceed $350,000 in the aggregate for the
Borrower and the Parent throughout the term of this Agreement;
76
(f) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Borrower, accrued but unpaid
Earn-Out Liabilities;
(g) provided that no Default or Event of Default exists or would result
from the incurrence thereof, with respect to the Parent, the Borrower and the
Subsidiaries of the Borrower, Debt owed to each other; provided that all Debt
owed by the Borrower or any of its Subsidiaries to the Parent shall be
Subordinated Debt;
(h) provided that no Default or Event of Default exists or would result
from the incurrence thereof, in addition to the Subordinated Debt the Parent is
entitled to incur in accordance with the terms of Section 8.02(c) above, the
Parent may incur Subordinated Debt to the Shareholders, such Subordinated Debt
not to exceed in principal face amount in the aggregate for any taxable year,
the amount necessary to enable the Borrower to obtain the maximum possible
deduction for dividends paid, as defined in Section 561 of the Code and further
described in Section 857 of the Code for such year, taking into account the sum
of all distributions previously made to Shareholders permitted by Section
8.08(b)(iii) hereof for such fiscal year, provided that, any determination under
Section 857 of the Code shall take into consideration for such purpose the
necessity of increasing the aggregate amounts distributed to reflect the fact
that distributions in redemption of any preferred return on any class of stock
will be treated as being made partly from earnings and profits and partly from
capital; and
(i) provided that no Default or Event of Default exists or would result
from the incurrence thereof, Debt for Borrowed Money incurred by the Borrower to
sellers in connection with Permitted Acquisitions, the amount of such Debt which
shall not exceed, together with the amount of seller Debt described on Schedule
8.02 hereto, the aggregate amount of Letters of Credit which are issued
hereunder in connection with such Permitted Acquisitions.
(j) provided that, no Default or Event of Default exists or would result
from the incurrence thereof, Debt for Borrowed Money incurred pursuant to the
Term Loan Agreement, which may be refinanced (provided no Default or Event of
Default exists or would result from the incurrence thereof) with proceeds of one
or more issuances (and refinances thereof) of (x) subordinated debt which is on
terms and conditions and pursuant to documentation satisfactory to the
Administrative Lender and the SuperMajority Lenders or (y) Subordinated Debt.
8.03. Liens. The Borrower shall not, and shall not permit the Parent or
any Subsidiary of the Borrower to, create, assume, incur, permit or suffer to
exist, directly or indirectly, any Lien
77
on any of its assets or Properties, whether now owned or hereafter acquired,
except Permitted Liens. The Borrower shall not, and shall not permit Parent or
any Subsidiary of the Borrower to, agree with any other Person that it shall not
create, assume, incur, permit or suffer to exist or to be created, assumed,
incurred or permitted to exist, directly or indirectly, any Lien on any of its
assets or Properties.
8.04. Investments. The Borrower shall not, and shall not permit the
Parent or any Subsidiary of the Borrower to, make any Investment, except that
the Borrower may purchase or otherwise acquire and own:
(a) Marketable, direct obligations of, or guaranteed by, the United States
of America and maturing within 365 days of the date of purchase;
(b) Commercial paper issued by U.S. corporations that have a rating of A-
1/P-1 or better by Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings
Group, a Division of XxXxxx-Xxxx, Inc.;
(c) Certificates of deposit of domestic banks maturing within 365 days of
the date of purchase, which banks' debt obligations have one of the two highest
ratings obtainable from Xxxxx'x Investors Service, Inc. or Standard & Poor's
Ratings Group, a Division of XxXxxx-Xxxx, Inc.;
(d) Securities issued by U.S. corporations that have one of the two highest
ratings obtainable from Xxxxx'x Investors Service, Inc. or Standard & Poor's
Ratings Group, a Division of XxXxxx-Xxxx, Inc.;
(e) Investments in newly-formed or existing, wholly-owned Subsidiaries of
the Borrower (i) that are subject to the provisions hereof, (ii) that are or
immediately become party to the Subsidiary Guaranty and any security documents
required by the Administrative Lender, (iii) whose stock is pledged to the
Lenders to secure the Obligations pursuant to a pledge agreement substantially
identical in form and substance to the Borrower Pledge Agreement and (iv) that
are Qualified REIT Subsidiaries;
(f) Accounts receivable that arise in the ordinary course of business and
are payable on standard terms;
(g) Investments in existence on the Closing Date which are described on
Schedule 8.04 hereto;
(h) Investments constituting Permitted Acquisitions permitted by Section
8.06(b) hereof;
(i) So long as there exists no Default or Event of Default at the time such
Investment is made, Investments not in excess of
78
$200,000 at any one time outstanding made by the Borrower in the form of
advances to executive employees for the purchase by any such employees of
residential property, but only to the extent that ABRY has made a capital
contribution to the Parent, and the Parent has made a capital contribution to
the Borrower, each in the form of equity, and provided further that no such
capital contribution may be used by the Borrower in connection with required
capital contributions for Permitted Acquisitions, General and Administrative
Expenses and curing Defaults and Event of Defaults under this Agreement and the
Loan Papers; and
(j) Certificates of deposit and Eurodollar time deposits with maturities of
one year or less from the date of acquisition, overnight bank deposits and
repurchase obligations having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States government
or any agency thereof, in each case, of either an Eligible Assignee or Xxxxx
Brothers Xxxxxxxx & Co., provided that such Investments do not exceed
$20,000,000 in the aggregate at any time outstanding.
8.05. Amendment and Waiver. The Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower to, enter into any amendment
of any term or provision, or accept any consent or waiver with respect to any
such provision, of (a) its articles of incorporation or by-laws in any manner
material and adverse to the Lenders, (b) any material provision of any material
Capital Lease in any manner material and adverse to the Lenders, (c) the Capital
Contribution Agreement, (d) any provision in any Ground Lease provision that is
set forth on Exhibit K hereto, (e) any material provision of the Stockholders
Agreement in any manner material and adverse to the Lenders or which would
result in a breach of any provision of the Loan Papers, or (f) the Term Loan
Agreement.. The Borrower shall not, nor shall it permit the Parent or any
Subsidiary of the Borrower to, amend or change (or take any action or fail to
take any action the result of which is an effective amendment or change) or
accept any waiver or consent with respect to, the Subordinated Debt that would
result in (a) an increase in any principal, interest, fees, or other amounts
payable under the Subordinated Debt (including without limitation a waiver or
action that results in the waiver of any payment default under the Subordinated
Debt), (b) a change in any date fixed for any payment of principal, interest,
fees, or other amounts payable under the Subordinated Debt (including, without
limitation, as a result of any redemption) to a date earlier than January 31,
2005, (c) a change in any financial covenant in the Subordinated Debt to a more
restrictive provision for the Borrower, the Parent or any Subsidiary of the
Borrower, (d) an increase in any remedy or right (or any change that broadens
the rights or remedies) of the holders of the Subordinated Debt, (e) a change in
any covenant, term or provision in the Subordinated Debt which would result in
such term or provision being more restrictive than the terms of this Agreement
and the Loan Papers, or (f) a change in any term or
79
provision of the Subordinated Debt, or other document or instrument in
connection therewith that could have, in any material respect, an adverse effect
on the interests of the Lenders.
8.06. Liquidation, Disposition or Acquisition of Assets, Merger, New
Subsidiaries. The Borrower shall not, and shall not permit the Parent or any
Subsidiary of the Borrower to, at any time:
(a) liquidate or dissolve itself (or suffer any liquidation or dissolution)
or otherwise wind up; or sell, lease, abandon, transfer or otherwise dispose of
all or any part of its assets, Properties or business (other than in the
ordinary course of business and other than assets that are damaged or obsolete),
provided that, (i) any Subsidiary of the Borrower can be dissolved so long as
the Borrower or a wholly-owned Subsidiary of the Borrower acquires all such
Subsidiary's assets; and (ii) so long as there exists no Default or Event of
Default both before and after giving effect to such sale and the Borrower
complies fully with Section 2.05(c) hereof, Borrower may consummate the sale of
Towers (but not all or any substantial portion of Towers).
(b) acquire any assets, Property or business of any other Person except (i)
the Borrower and the Subsidiaries of the Borrower may acquire assets and
Property acquired in the ordinary course of business and (ii) provided no
Default or Event of Default exists or would result therefrom, the Borrower may
consummate transactions constituting Permitted Acquisitions;
(c) enter into any merger or consolidation, except that, so long as there
exists no Default or Event of Default and none is caused thereby, (i) any
Subsidiary of the Borrower can merge or consolidate into any other Subsidiary of
the Borrower, or so long as such transaction is in connection with a Permitted
Acquisition, into another Person, so long as a Subsidiary of the Borrower is a
survivor, or into the Borrower so long as the Borrower is the surviving
corporation, and (ii) another Person may be merged into the Borrower or any
Subsidiary of the Borrower in connection with a Permitted Acquisition, so long
as the Borrower or such Subsidiary is the surviving corporation; or
(d) create or acquire any Subsidiary, except as permitted by Section 8.04(e)
hereof.
In connection with any asset sale permitted by this Section 8.06 or otherwise
consented to by the Lenders in accordance with the terms of this Agreement, the
Administrative Lender is hereby authorized by each Lender to (i) execute any and
all releases deemed appropriate by it to release such assets of the Borrower and
the Subsidiaries of the Borrower constituting Collateral from all Liens and
security interests securing all or any portion of the Obligations, (ii) return
to the Borrower any such Collateral in the
80
possession of the Administrative Lender, and (iii) take such other action as the
Administrative Lender deems necessary or appropriate in connection with such
transaction and in furtherance of the effectuation thereof.
8.07. Guaranties; Contingent Liabilities. The Borrower shall not, and
shall not permit the Parent or any Subsidiary of the Borrower to, at any time
make or issue any Guaranty, or assume, be obligated with respect to, or permit
to be outstanding any Contingent Liabilities, except pursuant to the Loan
Papers.
8.08. Restricted Payments. The Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower to, directly or indirectly
declare, make or pay any Restricted Payment; provided, however
(a) any Subsidiary of the Borrower may declare and pay a Distribution to the
Borrower, and
(b) so long as there exists no Default or Event of Default immediately
before and after giving effect to any such transaction,
(i) the Borrower may pay ABRY a management fee in an amount not to
exceed in the aggregate for any fiscal year of the Borrower, $75,000,
(ii) (A) the Borrower and the Parent may each make payments in kind
on its Subordinated Debt (but only in kind payments and no cash payments).
(iii) the Borrower may annually make not more than two cash
distributions to the Parent, who must use such cash distributions to make
distributions to the Shareholders, each such distribution in an aggregate
amount per taxable year equal to (A) the amount of gross income actually
includible by the Shareholders on their Tax returns with respect to such
taxable year solely as a result of the operations of the Parent, the
Borrower and its Subsidiaries, multiplied by (B) the sum of the highest
marginal Federal and highest marginal State income tax rates applicable to
one or more of the Shareholders,
(iv) Borrower may make one or more distributions with respect to any
taxable year constituting Subordinated Debt to the Parent, who, to the
extent such distribution is made by the Borrower may make one or more
distributions with respect to any taxable year constituting Subordinated
Debt to the Shareholders, each such distribution constituting Subordinated
Debt not to exceed in the aggregate an amount necessary to enable the Parent
to obtain the maximum possible deduction for dividends paid, as defined in
Section 561 of the Code and further described in Section 857 of the Code for
such year, taking into account the sum of all distributions previously
81
paid to Shareholders in accordance with the terms of Section 8.08(b)(iii)
above, provided that, in connection with any such distribution, the Parent
shall take into consideration for such purpose the necessity of increasing
the aggregate amounts distributed to reflect the fact that distributions in
redemption of any preferred return on any class of stock will be treated as
being made partly from earnings and profits and partly from capital,
(v) the Borrower may make a distribution to the Parent to enable the
Parent to repurchase capital stock of the Parent owned by any deceased
Shareholder (and the Parent is hereby permitted to do so) (A) to the extent
that the Borrower was the beneficiary of a key-man life insurance policy on
such Shareholder and (B) in an amount not to exceed net proceeds received by
the Borrower from such key-man life insurance, and
(vi) at such time as the Leverage Ratio is less than 5.00 to 1.00,
the Borrower may make a distribution to the Parent to enable the Parent to
repurchase capital stock of the Parent owned by any Shareholder that was an
officer of the Borrower that has resigned or has been terminated (and the
Parent is hereby permitted to do so) (A) in accordance with the terms of
that certain Second Amended and Restated Subscription and Stockholders
Agreement, among the Parent and the Shareholders, dated as of May 16, 1996
(the "Stockholders Agreement") and (B) in an amount not to exceed any equity
contribution made by ABRY to the Parent and by the Parent to the Borrower
for such purpose;
(vii) the Borrower may make an annual distribution to Parent in an
amount not to exceed $50,000 to reimburse the Parent and ABRY for its
miscellaneous expenses; and
(viii) provided that the Leverage Ratio is at the time of such payment
less than 4.25 to 1.00, after September 19, 2000, the Borrower may make cash
distributions to the Parent to permit the Parent to pay, and the Parent may
use the proceeds of such distributions to pay, accrued interest at the rate
and as provided in the Term Loan Agreement in effect on the Closing Date (as
that term is defined in the Term Loan Agreement), to the extent such
interest is required by the terms of the Term Loan Agreement to be paid in
cash at such time,
(ix) the Parent may use the proceeds of (x) Subordinated Debt owed to
ABRY or (y) other subordinated debt with substantially similar terms
acceptable in form and substance to the Administrative Lender and the
SuperMajority Lenders incurred after such Closing Date to refinance the
principal and interest in respect of Debt for Borrowed Money described in
Section 8.02(j), and
82
(x) within 130 days after the end of each fiscal year of Borrower
ending on or after the Conversion Date, to the extent there exists Excess
Cash Flow not required to reduce the Available Commitment pursuant to
Section 2.05(b) of the Credit Agreement, the Borrower may make an annual
distribution to the Parent in the amount of such Excess Cash Flow.
8.09. Affiliate Transactions. The Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower to, at any time engage in
any transaction with an Affiliate, nor make an assignment or other transfer of
any of its assets or Properties to any Affiliate, on terms materially less
advantageous to the Parent, the Borrower or any Subsidiary of the Borrower than
would be the case if such transaction had been effected with a non-Affiliate,
except pursuant to the Capital Contribution Agreement, the agreements listed on
Schedule 8.09 hereto and except for Restricted Payments permitted to be paid
under Section 8.08 hereof, and as expressly permitted in Sections 8.02 and 8.04
hereof.
8.10. Compliance with ERISA. The Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower to, directly or indirectly,
or permit any member of its Controlled Group to directly or indirectly, (a)
terminate any Plan so as to result in any material (in the opinion of the
Majority Lenders) liability to the Borrower or any member of its Controlled
Group, (b) permit to exist any ERISA Event, or any other event or condition
which presents the risk of liability of the Borrower or any member of its
Controlled Group, (c) make a complete or partial withdrawal (within the meaning
of Section 4201 of ERISA) from any Multiemployer Plan so as to result in any
liability to the Borrower or any member of its Controlled Group, (d) enter into
any new Plan or modify any existing Plan so as to increase its obligations
thereunder except in the ordinary course of business consistent with past
practice which could result in any liability to the Borrower or any member of
its Controlled Group, or (e) permit the present value of all benefit
liabilities, as defined in Title IV of ERISA, under each Plan of the Borrower or
any member of its Controlled Group (using the actuarial assumptions utilized by
the PBGC upon termination of a plan) to exceed the fair market value of Plan
assets allocable to such benefits all determined as of the most recent valuation
date for each such Plan.
8.11. Capital Stock. The Borrower shall not, and shall not permit the
Parent or any Subsidiary of the Borrower to (a) make or permit any transfer,
assignment, distribution, mortgage, pledge or gift of any shares of Pledged
Stock, and (b) issue any Capital Stock, except as specifically permitted
pursuant to Section 8.02(c) hereof, provided that, if there exists no Default or
Event of Default before and immediately after giving effect to such issuance
(provided that, in accordance with the provisions of Section 8.01(a) hereof, a
Default or Event of Default may exist prior to
83
such issuance), the Parent may issue Capital Stock of the Parent to any Person.
8.12. Sale and Leaseback. The Borrower shall not, and shall not permit
the Parent or any Subsidiary of the Borrower to, enter into any arrangement
whereby it sells or transfers any of its assets, and thereafter rents or leases
such assets, except that the Borrower may sell real estate that it owns and
thereafter lease it subject to a Ground Lease, provided that the Borrower
complies with the provisions of Sections 6.15 and 7.07 hereof as if the Borrower
had acquired such leased property.
8.13. Sale or Discount of Receivables. The Borrower shall not, and
shall not permit the Parent or any Subsidiary of the Borrower to, directly or
indirectly sell, with or without recourse, for discount or otherwise, any notes
or accounts receivable.
ARTICLE IX. EVENTS OF DEFAULT
9.01. Events of Default. Any one or more of the following shall be an
"Event of Default" hereunder, if the same shall occur for any reason whatsoever,
whether voluntary or involuntary, by operation of Law, or otherwise:
(a) The Borrower shall fail to pay any (i) principal payable under any Loan
Paper on the date due; or (ii) any interest, fees or other amounts payable
within three days of the date due;
(b) Any representation or warranty made or deemed made by any Obligor (or
any of its officers or representatives) under or in connection with any Loan
Paper shall prove to have been incorrect or misleading in any material respect
when made or deemed made;
(c) The Borrower shall fail to perform or observe any term or covenant
contained in Article VIII hereof;
(d) Any Obligor shall fail to perform or observe any other term or covenant
contained in any Loan Paper, other than those described in Sections 9.01(a), (b)
and (c) above or in Sections 6.15(a) and (b) hereof, and such failure shall not
be remedied within thirty days following the earlier of the Borrower's knowledge
of such failure or notice from any Lender of the occurrence of such failure;
(e) Any of the following shall occur: (i) Any Loan Paper or material
provision thereof shall, for any reason, not be valid and binding on the Obligor
signatory thereto, or not be in full force and effect, or shall be declared to
be null and void; or (ii) the validity or enforceability of any Loan Paper shall
be contested by any Obligor; or (iii) any Obligor shall deny in writing that it
has any or further liability or obligation under its respective Loan
84
Papers; or (iv) any default or breach under any provision of any Loan Papers
shall continue after the applicable grace period, if any, specified in such Loan
Paper;
(f) Any of the following shall occur: (i) any Obligor shall make an
assignment for the benefit of creditors or be unable to pay its debts generally
as they become due; (ii) any Obligor shall petition or apply to any Tribunal for
the appointment of a trustee, receiver, or liquidator of it, or of any
substantial part of its assets, or shall commence any proceedings relating to
any Obligor under any Debtor Relief Laws; (iii) any such petition or application
shall be filed, or any such proceedings shall be commenced, against any Obligor,
or an order, judgment or decree shall be entered appointing any such trustee,
receiver, or liquidator, or approving the petition in any such proceedings, and
such petition or application shall be consented to or uncontested by such
Obligor, or if contested by such Obligor, shall not be dismissed within 60 days
following the filing of such petition or application; (iv) any final order,
judgment, or decree shall be entered in any proceedings against any Obligor
decreeing its dissolution; or (v) any final order, judgment, or decree shall be
entered in any proceedings against any Obligor decreeing its split-up which
requires the divestiture of a substantial part of its assets;
(g) Any of the following shall occur: (i) The Borrower or any other Obligor
shall fail to pay any Subordinated Debt, or any Debt or obligations in respect
of Capital Leases (other than Debt under the Loan Papers) in an aggregate amount
of $1,000,000 or more when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or (ii) the Borrower or any other Obligor
shall fail to perform or observe any term or covenant contained in any agreement
or instrument relating to any such Debt, when required to be performed or
observed, and such failure shall continue after the applicable grace period, if
any, specified in such agreement or instrument, and can result in acceleration
of the maturity of such Debt; or (iii) any such Debt shall be declared to be due
and payable, or required to be prepaid, mandatorily redeemed or repurchased
(other than by a regularly scheduled required prepayment), prior to the stated
maturity thereof;
(h) Any Obligor shall have any final judgment(s) outstanding against it for
the payment of $1,000,000 or more, and such judgment(s) shall remain unstayed,
in effect, and unpaid for the period of time after which the judgment holder may
and may cause the creation of Liens against or seizure of any of its Property;
(i) Any of the following shall have occurred: (i) Any ERISA Event shall
have occurred with respect to a Plan of the Borrower,
85
and the sum of the Insufficiency of such Plan and liabilities relating thereto
is equal to or greater than $1,000,000 or (ii) the Borrower or any ERISA
Affiliate of the Borrower shall have committed a failure described in Section
302(f)(l) of ERISA, and the amount determined under Section 302(f)(3) of ERISA
is equal to or greater than $1,000,000;
(j) The Borrower or any ERISA Affiliate of the Borrower shall have been
notified by the sponsor of a Multiemployer Plan that (A) it has incurred
Withdrawal Liability to such Plan in an amount that, exceeds $1,000,000 or
requires payments exceeding $1,000,000 per annum, or (B) such Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result thereof the aggregate annual contributions to all Multiemployer
Plans in reorganization or being terminated is increased over the amounts
contributed to such Plans for the preceding Plan year by an amount exceeding
$1,000,000;
(k) Any Obligor shall be required under any Environmental Law (i) to
implement any remedial, neutralization, or stabilization process or program, the
cost of which would constitute a Material Adverse Change, or (ii) to pay any
penalty, fine, or damages in an aggregate amount which would constitute a
Material Adverse Change;
(l) Any of the following shall have occurred: (i) Any Property (whether
leased or owned), or the operations conducted thereon by any Obligor or any
current or prior owner or operator thereof (in the case of real Property), shall
violate or have violated any applicable Environmental Law, if such violation
would constitute a Material Adverse Change; or (ii) such Obligor shall not
obtain or maintain any License required to be obtained or filed under any
Environmental Law in connection with the use of such Property and assets,
including without limitation past or present treatment, storage, disposal, or
release of Hazardous Materials into the environment, if the failure to obtain or
maintain the same would constitute a Material Adverse Change;
(m) Any of the following shall have occurred: (i) Any Loan Paper shall for
any reason (other than pursuant to the terms thereof) cease to create a valid
and perfected first priority Lien in the Collateral purported to be covered
thereby (except as permitted by the terms of this Agreement or consented to by
the Lenders); or (ii) less than 100% of the Capital Stock of the Borrower shall
be pledged to secure the Obligations;
(n) Any of the following shall have occurred: (i) A final non-appealable
order is issued by any Tribunal, including, but not limited to, the FCC, the FAA
or the United States Justice Department, requiring Borrower to divest a
substantial portion of its assets pursuant to any antitrust, restraint of trade,
unfair competition, industry regulation, or similar Laws, or (ii) any Tribunal
shall condemn, seize, or otherwise appropriate, or take
86
custody or control of all or any substantial portion of the assets of Borrower;
(o) Any of the following shall have occurred if the effect thereof is to
cause a Material Adverse Change: (i) Any License whether presently existing or
hereafter granted to or obtained by Borrower or any Subsidiary of the Borrower
shall expire without renewal on or before payment in full of the Notes and all
Obligations hereunder, or be suspended or revoked, or (ii) Borrower or any
Subsidiary of the Borrower shall become subject to any injunction or other order
affecting or which may affect Borrower's or a Subsidiary of the Borrower's
present or proposed operations under any such License;
(p) Any of the following shall have occurred: (i) There shall exist any
breach of the Capital Contribution Agreement after the expiration of any
applicable grace period, or (ii) ABRY or the Parent shall fail at any time to
perform any obligation it has under the Capital Contribution Agreement, after
the expiration of any applicable grace period, or (iii) ABRY, the Parent or the
Borrower denies the validity or enforceability of the Capital Contribution
Agreement or any material provision thereof;
(q) Any of the following shall have occurred: (i) the Shareholders in
existence on the Closing Date shall, at any time, own and control less than 51%
of the outstanding voting stock of the Parent; or (ii) the Parent shall own less
than 100% of the Capital Stock of the Borrower, or the Borrower shall own less
than 100% of its Subsidiaries;
(r) For any taxable year, the Borrower shall have made any Restricted
Payment to the Parent, or the Parent shall have made any Restricted Payment to
any Shareholder in accordance with the terms of Section 8.08(b)(iii) hereof for
the tax liability of any Shareholder for such taxable year, and the Borrower or
the Parent shall also have paid or be subject to any Federal income tax on any
amount in excess of five percent of the Borrower's real estate investment trust
taxable income for such taxable year;
(s) Any civil action, suit or proceeding shall be commenced against
Borrower, the Parent, or any Subsidiary of the Borrower under any federal or
state racketeering statute (including, without limitation, the Racketeer
Influenced and Corrupt Organization Act of 1970)("RICO") and such suit shall be
adversely determined by a court of applicable jurisdiction and forfeiture shall
commence against assets in the aggregate having fair market value of $1,000,000
or more, or any criminal action or proceeding shall be commenced against the
Borrower, the Parent, or any Subsidiary of the Borrower under any federal or
state racketeering statute (including, without limitation, RICO);
87
(t) With respect to Parent, Borrower or any Subsidiary of the Borrower, (i)
any such entity fails to pay dividends in the amount of taxable income necessary
to maintain Parent's REIT Status, or (ii) Parent shall fail to maintain its REIT
Status or (iii) Borrower or any Subsidiary of Borrower shall fail to maintain
its status as a Qualified REIT Subsidiary; and
(u) Any of the following shall occur: (i) The Borrower or any other Obligor
shall, if Debt for Borrowed Money is outstanding under the Term Loan Agreement
on the third anniversary of the Closing Date (as that term is defined in the
Term Loan Agreement), fail to extend the time for payment under the Term Loan
Agreement until ten years after the Closing Date (as defined in the Term Loan
Agreement) as provided in Section 4.1(b) of the Term Loan Agreement, and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or (ii) the Borrower or any
other Obligor shall fail to perform or observe any term or covenant contained in
any agreement or instrument relating to any such Debt, when required to be
performed or observed, and such failure shall continue after the applicable
grace period, if any, specified in such agreement or instrument, and can result
in acceleration of the maturity of such Debt; or (iii) any such Debt shall be
declared to be due and payable, or required to be prepaid, mandatorily redeemed
or repurchased, prior to the stated maturity thereof; or (iv) if, any
obligations under the Term Loan Agreement remain outstanding, a "Change of
Control" as that term is defined in the Term Loan Agreement shall occur.
9.02. Remedies upon Default. If an Event of Default described in
Section 9.01(f) shall occur with respect to any Obligor, the aggregate unpaid
principal balance of and accrued interest on all Advances shall, to the extent
permitted by applicable Law, thereupon become due and payable concurrently
therewith, without any action by Administrative Lender or any Lender, and
without diligence, presentment, demand, protest, notice of protest or intent to
accelerate, or notice of any other kind, all of which are hereby expressly
waived. Subject to the foregoing sentence, if any Event of Default shall occur
and be continuing, Administrative Lender may at its election, do any one or more
of the following:
(a) Declare the entire unpaid balance of all Advances immediately due and
payable, whereupon it shall be due and payable without diligence, presentment,
demand, protest, notice of protest or intent to accelerate, or notice of any
other kind (except notices specifically provided for under Section 9.01 hereof),
all of which are hereby expressly waived (except to the extent waiver of the
foregoing is not permitted by applicable Law);
(b) Terminate the Available Commitment;
88
(c) Reduce any claim of Administrative Lender and Lenders to judgment;
(d) Demand (and the Borrower shall pay to Administrative Lender)
immediately upon demand and in immediately available funds, the amount equal to
the aggregate amount of the Letters of Credit then outstanding, irrespective of
whether such Letters of Credit have been drawn upon, all as set forth and in
accordance with the terms of provisions of Article III hereof. The
Administrative Lender shall promptly advise the Borrower of any such declaration
or demand but failure to do so shall not impair the effect of such declaration
or demand; and
(e) Exercise any Rights afforded under any Loan Papers, by Law, including
but not limited to the UCC, at equity, or otherwise.
9.03. Cumulative Rights. All Rights available to Administrative Lender
and Lenders under the Loan Papers shall be cumulative of and in addition to all
other Rights granted thereto at Law or in equity, whether or not amounts owing
thereunder shall be due and payable, and whether or not Administrative Lender or
any Lender shall have instituted any suit for collection or other action in
connection with the Loan Papers.
9.04. Waivers. The acceptance by Administrative Lender or any Lender at
any time and from time to time of partial payment of any amount owing under any
Loan Papers shall not be deemed to be a waiver of any Default or Event of
Default then existing. No waiver by Administrative Lender or any Lender of any
Default or Event of Default shall be deemed to be a waiver of any Default or
Event of Default other than such Default or Event of Default. No delay or
omission by Administrative Lender or any Lender in exercising any Right under
the Loan Papers shall impair such Right or be construed as a waiver thereof or
an acquiescence therein, nor shall any single or partial exercise of any such
Right preclude other or further exercise thereof, or the exercise of any other
Right under the Loan Papers or otherwise.
9.05. Performance by Administrative Lender or any Lender. Should any
covenant of any Obligor fail to be performed in accordance with the terms of the
Loan Papers, Administrative Lender may, at its option, perform or attempt to
perform such covenant on behalf of such Obligor. Notwithstanding the foregoing,
it is expressly understood that neither Administrative Lender nor any Lender
assumes, and shall not ever have, except by express written consent of
Administrative Lender or such Lender, any liability or responsibility for the
performance of any duties or covenants of any Obligor.
9.06. Expenditures. The Borrower shall reimburse Administrative Lender
and each Lender for any reasonable sums spent by it in connection with the
exercise of any Right under Section
89
9.05 hereof. Such sums shall bear interest at the lesser of (a) the Base Rate
(whether or not in effect), plus 2.00% per annum and (b) the Highest Lawful
Rate, from five days after the date any Lender makes demand to the Borrower for
reimbursement of such amount until the date of repayment by the Borrower.
9.07. Control. None of the covenants or other provisions contained in
this Agreement shall, or shall be deemed to, give Administrative Lender or any
Lender any Rights to exercise control over the affairs and/or management of any
Obligor, the power of Administrative Lender and each Lender being limited to the
Rights to exercise the remedies provided in this Article; provided, however,
-------- -------
that if Administrative Lender or any Lender becomes the owner of any
partnership, stock or other equity interest in any Person, whether through
foreclosure or otherwise, it shall be entitled to exercise such legal Rights as
it may have by being an owner of such stock or other equity interest in such
Person.
ARTICLE X. THE ADMINISTRATIVE LENDER
10.01. Authorization and Action. Each Lender hereby appoints and
authorizes Administrative Lender to take such action as Administrative Lender on
its behalf and to exercise such powers under this Agreement and the other Loan
Papers as are delegated to the Administrative Lender by the terms of the Loan
Papers, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement and the other Loan
Papers (including without limitation enforcement or collection of the Notes),
Administrative Lender 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
Majority Lenders (or all Lenders, if required under Section 11.01 hereof), and
such instructions shall be binding upon all Lenders; provided, however, that
-------- -------
Administrative Lender shall not be required to take any action which exposes
Administrative Lender to personal liability or which is contrary to any Loan
Papers or applicable Law. Administrative Lender agrees to give to each Lender
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement, and to distribute to each applicable Lender in like funds all amounts
delivered to Administrative Lender by the Borrower for the Ratable or individual
account of any Lender. Functions of the Administrative Lender are administerial
in nature and in no event shall the Administrative Lender have a fiduciary or
trustee relationship in respect of any Lender by reason of this Agreement or any
Loan Paper.
10.02. Administrative Lender's Reliance, Etc. Neither Administrative
Lender, nor any of its directors, officers, agents, employees, or
representatives shall be liable for any action taken or omitted to be taken by
it or them under or in connection with
90
this Agreement or any other Loan Paper, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, Administrative Lender (a) may treat the payee of any Note as the
holder thereof until Administrative Lender receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
Administrative Lender; (b) may consult with legal counsel (including counsel for
the Borrower or any of its Subsidiaries), independent public accountants, and
other experts selected by it, and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants, or experts; (c) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements,
warranties, or representations made in or in connection with this Agreement or
any other Loan Papers; (d) shall not have any duty to ascertain or to inquire as
to the performance or observance of any of the terms, covenants, or conditions
of this Agreement or any other Loan Papers on the part of any Obligor or its
Subsidiaries or to inspect the Property (including the books and records) of any
Obligor or its Subsidiaries; (e) shall not be responsible to any Lender for the
due execution, legality, validity, enforceability, genuineness, sufficiency, or
value of this Agreement, any other Loan Papers, or any other instrument or
document furnished pursuant hereto; and (f) shall incur no liability under or in
respect of this Agreement or any other Loan Papers by acting upon any notice,
consent, certificate, or other instrument or writing believed by it to be
genuine and signed or sent by the proper party or parties.
10.03. NationsBank of Texas, National Association and Affiliates. With
respect to its Available Commitment, its Advances, and any Loan Papers,
NationsBank of Texas, National Association has the same Rights under this
Agreement as any other Lender and may exercise the same as though it were not
Administrative Lender. NationsBank of Texas, National Association and its
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, any Obligor,
any Affiliate thereof, and any Person who may do business therewith, all as if
NationsBank of Texas, National Association were not Administrative Lender and
without any duty to account therefor to any Lender.
10.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Administrative Lender or any other
Lender, and based on the financial statements referred to in Section 5.01(j),
Article VII hereof and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon Administrative Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions
91
in taking or not taking action under this Agreement and the other Loan Papers.
10.05. Indemnification by Lenders. Lenders shall indemnify
Administrative Lender, Pro Rata, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against Administrative Lender in any way relating
to or arising out of any Loan Papers or any action taken or omitted by
Administrative Lender thereunder, including any negligence of Administrative
Lender; provided, however, that no Lender shall be liable for any portion of
-------- -------
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements resulting from Administrative Lender's
gross negligence or willful misconduct. Without limitation of the foregoing,
Lenders shall reimburse Administrative Lender, Pro Rata, promptly upon demand
for any out-of-pocket expenses (including reasonable attorneys' fees) incurred
by Administrative Lender in connection with the preparation, execution,
delivery, administration, modification, amendment, or enforcement (whether
through negotiation, legal proceedings or otherwise) of, or legal and other
advice in respect of rights or responsibilities under, the Loan Papers. The
indemnity provided in this Section 10.05 shall survive the termination of this
Agreement.
10.06. Successor Administrative Lender. Administrative Lender may resign
at any time by giving written notice thereof to Lenders and the Borrower, and
may be removed at any time with or without cause by the action of all Lenders
(other than Administrative Lender, if it is a Lender). Upon any such
resignation, Majority Lenders shall have the right to appoint a successor
Administrative Lender. If no successor Administrative Lender shall have been so
appointed and shall have accepted such appointment within thirty days after the
retiring Administrative Lender's giving of notice of resignation, then the
retiring Administrative Lender may, on behalf of Lenders, appoint a successor
Administrative Lender, which shall be a commercial bank organized under the Laws
of the United States of America or of any State thereof and having a combined
capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Administrative Lender hereunder by a successor Administrative
Lender, such successor Administrative Lender shall thereupon succeed to and
become vested with all the Rights and duties of the retiring Administrative
Lender, and the retiring Administrative Lender shall be discharged from its
duties and obligations under the Loan Papers, provided that if the retiring or
removed Administrative Lender is unable to appoint a successor Administrative
Lender, Administrative Lender shall, after the expiration of a sixty day period
from the date of notice, be relieved of all obligations as Administrative Lender
hereunder. Notwithstanding any Administrative Lender's resignation or removal
92
hereunder, the provisions of this Article shall continue to inure to its benefit
as to any actions taken or omitted to be taken by it while it was Administrative
Lender under this Agreement.
ARTICLE XI. MISCELLANEOUS
11.01. Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Papers, nor consent to any departure by the
Borrower or any Obligor therefrom, shall be effective unless the same shall be
in writing and signed by the Borrower and the Administrative Lender with the
consent of the Majority Lenders, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver, or consent shall (and the
-------- -------
result of action or failure to take action shall not) unless in writing and
signed by all of Lenders and Administrative Lender, (a) increase the Available
Commitment, (b) reduce any principal, interest, fees, or other amounts payable
hereunder, or waive or result in the waiver of any Event of Default under
Section 9.01(a) hereof, (c) postpone any date fixed for any payment of
principal, interest, fees, or other amounts payable hereunder, (d) release any
Collateral or guaranties securing any Obligor's obligations hereunder, other
than releases contemplated hereby and by the Loan Papers, (e) change the meaning
of "Specified Percentage" or the number of Lenders required to take any action
hereunder, change the definitions of "Available Commitment", "Unavailable
Commitment", "Aggregate Commitment", "Conversion Date", "Maturity Date",
"Majority Lenders", or "Letter of Credit Commitment", (f) amend Section 2 of the
Capital Contribution Agreement, (g) amend Section 2.06(a), 2.18(e), (h), and
(i), 2.11(a) and (b), the last sentence of 8.01(a)(i), and this Section 11.01.
No amendment, waiver, or consent shall affect the Rights or duties of
Administrative Lender under any Loan Papers, unless it is in writing and signed
by Administrative Lender in addition to the requisite number of Lenders.
11.02. Notices.
(a) Manner of Delivery. All notices communications and other materials to
be given or delivered under the Loan Papers shall, except in those cases where
giving notice by telephone is expressly permitted, be given or delivered in
writing. All written notices, communications and materials shall be sent by
registered or certified mail, postage prepaid, return receipt requested, by
telecopier, or delivered by hand. In the event of a discrepancy between any
telephonic notice and any written confirmation thereof, such written
confirmation shall be deemed the effective notice except to the extent
Administrative Lender, any Lender or the Borrower has acted in reliance on such
telephonic notice.
(b) Addresses. All notices, communications and materials to be given or
delivered pursuant to this Agreement shall be given or
93
delivered at the following respective addresses and telecopier and telephone
numbers and to the attention of the following individuals or departments:
(i) If to the Borrower:
Pinnacle Towers Inc.
0000 Xxxxxxxx Xxxxxxxxx
0xx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Mr. Xxxxx Xxx
(ii) If to Administrative Lender:
NationsBank of Texas, National Association
NationsBank Plaza
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxx
Vice President
With a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxx, P.C.
3400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx Xxxxxxx
(iii) If to any Lender, to its address shown on Schedule 11.02 hereto or
on any Assignment and Acceptance.
or at such other address or, telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice to the other
specifically captioned "Notice of Change of Address".
(d) Effectiveness. Each notice, communication and any material to be given
or delivered to any party pursuant to this Agreement shall be effective or
deemed delivered or furnished (i) if sent by mail, on the fifth day after such
notice, communication or material is deposited in the mail, addressed as above
provided, (ii) if sent by telecopier, when such notice, communication or
material is transmitted to the appropriate number determined as above provided
in this Section 11.02 and the appropriate receipt is
94
received or otherwise acknowledged, (iii) if sent by hand delivery or overnight
courier, when left at the address of the addressee addressed as above provided,
and (iv) if given by telephone, when communicated to the individual or any
member of the department specified as the individual or department to whose
attention notices, communications and materials are to be given or delivered
except that notices of a change of address, telecopier or telephone number or
individual or department to whose attention notices, communications and
materials are to be given or delivered shall not be effective until received;
provided, however, that notices to Administrative Lender pursuant to Article II
-------- -------
shall be effective when received. The Borrower agrees that Administrative
Lender shall have no duty or obligation to verify or otherwise confirm
telephonic notices given pursuant to Article II, and agrees to indemnify and
hold harmless Administrative Lender and Lenders for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, and expenses resulting, directly or indirectly, from acting upon any such
notice.
11.03. Parties in Interest. All covenants and agreements contained in
this Agreement and all other Loan Papers shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto. Each Lender may
from time to time assign or transfer its interests hereunder pursuant to Section
11.04 hereof. The Borrower may not assign or transfer its Rights or obligations
hereunder without the prior written consent of Administrative Lender.
11.04. Assignments and Participations.
(a) Each Lender (an "Assignor") may assign its Rights and obligations as a
Lender under the Loan Papers to one or more Eligible Assignees pursuant to an
Assignment and Acceptance, so long as (i) each assignment shall be of a
constant, and not a varying percentage of all Rights and obligations thereunder,
(ii) each Assignor shall obtain in each case the prior written consent of
Administrative Lender and the Borrower, in each case such consent not to be
unreasonably withheld or delayed, provided that, in the event there exists a
Default or Event of Default, any such consent of the Borrower shall not be
required, (iii) each Assignor shall in each case pay a $3,500 processing fee to
Administrative Lender and (iv) no such assignment is for an amount less than
$5,000,000 (and, if such assignment is a partial assignment, no Lender shall
hold less than $5,000,000 immediately after giving effect to any assignment).
Assignments and other transfers (except participations) with respect to each
Lender's participation in a given Letter of Credit may only be made with the
prior written consent of the Administrative Lender. Within five Business Days
after Administrative Lender receives notice of any such assignment, the Borrower
shall execute and deliver to Administrative Lender, in exchange for the Notes
issued to Assignor, new Notes to the order of such Assignor and its assignee in
amounts equal to their
95
respective Specified Percentages of the Available Commitment. Such new Notes
shall be dated the effective date of the assignment. It is specifically
acknowledged and agreed that on and after the effective date of each assignment,
the assignee shall be a party hereto and shall have the Rights and obligations
of a Lender under the Loan Papers.
(b) Each Lender may sell participations to one or more Persons in all or any
of its Rights and obligations under the Loan Papers; provided, however, that (i)
-------- -------
such Lender's obligations under the Loan Papers shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
its Notes for all purposes of the Loan Papers, (iv) the participant shall be
granted the Right to vote on or consent to only those matters described in
Sections 11.01(a), (b), (c) and (d) hereof, (v) Obligor, Administrative Lender,
and other Lenders shall continue to deal solely and directly with such Lender in
connection with its Rights and obligations under the Loan Papers and (vi) no
such participation is for an amount less than $5,000,000.
(c) Any Lender may, in connection with any assignment or participation, or
proposed assignment or participation, disclose to the assignee or participant,
or proposed assignee or participant, any information relating to any Obligor
furnished to such Lender by or on behalf of any Obligor.
(d) Notwithstanding any other provision set forth in this Agreement, (i) any
Lender may at any time create a security interest in all or any portion of its
Rights under this Agreement (including, without limitation, the Advances owing
to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System, (ii) no participant of any Lender may further assign or participate any
of its interest in the Loan Papers to any Person (except as may be required by
Law or a Tribunal having authority over such participant), and (iii) no Lender
(other than NationsBank of Texas, N.A.) may assign any of its interest in the
Loan Papers to any Person (except as may be required by Law or a Tribunal having
authority over NationsBank of Texas, N.A.) except as specifically provided in
Section 11.04 hereof.
11.05. Sharing of Payments. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any Right of set-off,
or otherwise) on account of its Advances in excess of its Pro Rata share of
payments made by the Borrower, such Lender shall forthwith purchase
participations in Advances made by the other Lenders as shall be necessary to
share the excess payment Pro Rata with each of them; provided, however, that if
-------- -------
any of such excess payment is thereafter recovered from the purchasing Lender,
its purchase from each Lender shall be rescinded and each Lender
96
shall repay the purchase price to the extent of such recovery together with a
Pro Rata share of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower agrees that
any Lender so purchasing a participation from another Lender pursuant to this
Section 11.05 may, to the fullest extent permitted by Law, exercise all its
Rights of payment (including the Right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
11.06. Right of Set-off. Upon the occurrence and during the continuance
of any Event of Default, each Lender 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 Lender to or for
the credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Agreement and the other
Loan Papers, whether or not Administrative Lender or any Lender shall have made
any demand under this Agreement or the other Loan Papers, and even if such
obligations are unmatured. Each Lender shall promptly notify the Borrower after
any such set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The Rights of
each Lender under this Section 11.06 are in addition to other Rights (including,
without limitation, other Rights of set-off) which such Lender may have.
11.07. Costs, Expenses, and Taxes.
(a) The Borrower agrees to pay on demand (i) all costs and expenses of
Administrative Lender in connection with the preparation and negotiation of all
Loan Papers, including without limitation the reasonable fees and out-of-pocket
expenses of Special Counsel, (ii) all costs and expenses (including reasonable
attorneys' fees and expenses) of Administrative Lender in connection with any
interpretation, grant and perfection of any Lien, modification, amendment,
waiver, release of any Loan Papers, restructuring or work-out and (iii) all
costs and expenses (including reasonable attorneys' fees and expenses) of
Administrative Lender and each Lender in connection with any collection of any
portion of the Obligations or the enforcement of any Loan Papers during the
continuance of an Event of Default.
(b) In addition, the Borrower shall pay any and all stamp, debt, and other
Taxes payable or determined to be payable in connection with any payment
hereunder (other than Taxes on the overall net income of Administrative Lender
or any Lender or franchise Taxes or Taxes on capital or capital receipts of
Administrative Lender or any Lender), or the execution, delivery, or recordation
of any Loan Papers, and agrees to save Administrative Lender and each Lender
harmless from and against any
97
and all liabilities with respect to, or resulting from any delay in paying or
omission to pay any Taxes in accordance with this Section 11.07, including any
penalty, interest, and expenses relating thereto. All payments by the Borrower
or any Subsidiary of the Borrower under any Loan Papers shall be made free and
clear of and without deduction for any present or future Taxes (other than Taxes
on the overall net income of Administrative Lender or any Lender of any nature
now or hereafter existing, levied, or withheld, or franchise Taxes or Taxes on
capital or capital receipts of Administrative Lender or any Lender), including
all interest, penalties, or similar liabilities relating thereto. If the
Borrower shall be required by Law to deduct or to withhold any Taxes from or in
respect of any amount payable hereunder (i) the amount so payable shall be
increased to the extent necessary so that, after making all required deductions
and withholdings (including Taxes on amounts payable to Administrative Lender or
any Lender pursuant to this sentence), Administrative Lender or any Lender
receives an amount equal to the sum it would have received had no such
deductions or withholdings been made, (ii) the Borrower shall make such
deductions or withholdings, and (iii) the Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority in accordance with
applicable Law. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 11.07 shall survive the execution of this Agreement, termination of
the Available Commitment, repayment of the Obligations, satisfaction of each
agreement securing or assuring the Obligations and termination of this Agreement
and each other Loan Paper.
11.08. Rate Provision. It is not the intention of any party to any Loan
Papers to make an agreement violative of the Laws of any applicable jurisdiction
relating to usury. In no event shall any Obligor or any other Person be
obligated to pay any amount in excess of the Maximum Amount. If Administrative
Lender or any Lender ever receives, collects or applies, as interest, any such
excess, such amount which would be excessive interest shall be deemed a partial
repayment of principal and treated hereunder as such; and if principal is paid
in full, any remaining excess shall be paid to the Borrower or the other Person
entitled thereto. In determining whether or not the interest paid or payable,
under any specific contingency, exceeds the Maximum Amount, each Obligor,
Administrative Lender and each Lender shall, to the maximum extent permitted
under Applicable Laws, (a) characterize any nonprincipal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments and
the effect thereof, and (c) amortize, prorate, allocate and spread in equal
parts, the total amount of interest throughout the entire contemplated term of
the Obligations so that the interest rate is uniform throughout the entire term
of the Obligations; provided that if the Obligations are paid and performed in
--------
full prior to the end of the full contemplated term thereof, and if the interest
received for the
98
actual period of existence thereof exceeds the Maximum Amount, Administrative
Lender or Lenders, as appropriate, shall refund to the Borrower the amount of
such excess or credit the amount of such excess against the total principal
amount owing, and, in such event, neither Administrative Lender nor any Lender
shall be subject to any penalties provided by any Laws for contracting for,
charging or receiving interest in excess of the Maximum Amount. This Section
11.08 shall control every other provision of all agreements among the parties to
the Loan Papers pertaining to the transactions contemplated by or contained in
the Loan Papers.
11.09. Severability. If any provision of any Loan Papers is held to be
illegal, invalid, or unenforceable under present or future Laws during the term
thereof, such provision shall be fully severable, the appropriate Loan Paper
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part thereof, and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance therefrom.
Furthermore, in lieu of such illegal, invalid, or unenforceable provision there
shall be added automatically as a part of such Loan Paper a legal, valid, and
enforceable provision as similar in terms to the illegal, invalid, or
unenforceable provision as may be possible.
11.10. Exceptions to Covenants. No Obligor shall be deemed to be
permitted to take any action or to fail to take any action that is permitted as
an exception to any covenant in any Loan Papers, or that is within the
permissible limits of any covenant, if such action or omission would result in a
violation of any other covenant in any Loan Papers.
11.11. Counterparts. This Agreement and the other Loan Papers may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought.
11.12. GOVERNING LAW; WAIVER OF JURY TRIAL.
(A) THIS AGREEMENT AND ALL OTHER LOAN PAPERS SHALL BE DEEMED TO BE CONTRACTS
MADE IN DALLAS, TEXAS, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO CONFLICTS OF LAWS) AND
THE UNITED STATES OF AMERICA. WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE
BORROWER AGREES THAT THE STATE AND FEDERAL COURTS OF TEXAS LOCATED IN DALLAS,
TEXAS, WILL HAVE JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH. TO THE
MAXIMUM EXTENT PERMITTED BY LAW, THE BORROWER HEREBY WAIVES ANY RIGHT THAT IT
MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT,
EQUITY, OR OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER
99
LOAN PAPERS, OR ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
(B) THE BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY LEGAL PROCESS UPON
IT. THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWER AT ITS
ADDRESS DESIGNATED FOR NOTICE UNDER THIS AGREEMENT AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED FIVE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL.
NOTHING IN THIS SECTION 11.12 SHALL AFFECT THE RIGHT OF ADMINISTRATIVE LENDER OR
ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
11.13. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
100
IN WITNESS WHEREOF, this Credit Agreement is executed as of the date first
set forth above.
THE BORROWER:
PINNACLE TOWERS INC.
By: ________________________________________
Its:
ADMINISTRATIVE LENDER:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, as
Administrative Lender
____________________________________________
By: Xxxxxxx Xxxx
Its: Vice President
101
XXXXXXX SACHS CREDIT PARTNERS, L.P., as
Syndication Agent
________________________________________
By: ____________________________________
________________________________________
Its:____________________________________
________________________________________
LENDERS:
Specified Percentage: 70.000%
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION,
individually as a Lender
Address:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxx 00000
________________________________________
By: Xxxxxxx Xxxx
Its: Vice President
Attn.: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Specified Percentage: 30.000%
XXXXXXX XXXXX CREDIT PARTNERS L.P.
Address:
00 Xxxxxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
________________________________________
By: ____________________________________
Its:____________________________________
Attn.: Xxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
102
