EXHIBIT 10.1
------------
==============================================================================
CREDIT AGREEMENT
AMONG
SPECTRASITE COMMUNICATIONS, INC., AS BORROWER;
SPECTRASITE, INC., AS A GUARANTOR;
TD SECURITIES (USA) LLC AND CITIGROUP GLOBAL MARKETS INC.,
AS LEAD ARRANGERS;
TD SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS INC. AND
DEUTSCHE BANK SECURITIES, INC., AS JOINT BOOK RUNNERS;
DEUTSCHE BANK SECURITIES, INC., THE ROYAL BANK OF SCOTLAND PLC
AND XXXXXX COMMERCIAL PAPER INC.,
AS CO-ARRANGERS AND CO-DOCUMENTATION AGENTS;
CITICORP N.A., INC.,
AS SYNDICATION AGENT;
TORONTO DOMINION (TEXAS) LLC.,
AS ADMINISTRATIVE AGENT;
AND
THE OTHER CREDIT PARTIES PARTY HERETO
DATED AS OF NOVEMBER 19, 2004
==============================================================================
ARTICLE 1 - Definitions...................................................................1
Section 1.1 Definitions..........................................................1
ARTICLE 2 - Loans........................................................................31
Section 2.1 The Loans...........................................................31
Section 2.2 Manner of Borrowing and Disbursement................................32
Section 2.3 Interest............................................................35
Section 2.4 Fees................................................................37
Section 2.5 Optional Prepayment/Reduction of Commitment.........................39
Section 2.6 Repayment...........................................................40
Section 2.7 Mandatory Repayments................................................41
Section 2.8 Notes; Loan Accounts................................................42
Section 2.9 Manner of Payment...................................................43
Section 2.10 Reimbursement.......................................................44
Section 2.11 Pro Rata Treatment..................................................44
Section 2.12 Capital Adequacy....................................................45
Section 2.13 Taxes...............................................................46
Section 2.14 Letters of Credit...................................................49
Section 2.15 Incremental Facility Loans..........................................54
ARTICLE 3 - Guarantee....................................................................55
Section 3.1 Guarantee...........................................................56
Section 3.2 Waivers and Releases................................................56
Section 3.3 Miscellaneous.......................................................57
ARTICLE 4 - Conditions Precedent.........................................................58
Section 4.1 Conditions Precedent to Initial Advance of the Loans and to the
Issuance of the Initial Letter of Credit............................58
Section 4.2 Conditions Precedent to Each Advance................................61
Section 4.3 Conditions Precedent to Issuance of Each Letter of Credit...........61
ARTICLE 5 - Representations and Warranties...............................................62
Section 5.1 Representations and Warranties......................................62
Section 5.2 Survival of Representations and Warranties, etc.....................70
ARTICLE 6 - General Covenants............................................................70
Section 6.1 Preservation of Existence and Similar Matters.......................71
Section 6.2 Business; Compliance with Applicable Law............................71
Section 6.3 Maintenance of Properties and Assets................................71
Section 6.4 Accounting Methods and Financial Records............................71
Section 6.5 Insurance...........................................................72
Section 6.6 Payment of Taxes and Claims.........................................72
Section 6.7 Visits and Inspections..............................................72
Section 6.8 Use of Proceeds.....................................................73
Section 6.9 Tower Site Agreements...............................................73
Section 6.10 Indemnity...........................................................73
Section 6.11 Interest Rate Hedging...............................................74
Section 6.12 Environmental Matters...............................................74
Section 6.13 ERISA...............................................................75
Section 6.14 Further Assurances..................................................75
Section 6.15 Covenants Regarding Additional Collateral...........................75
Section 6.16 Tower Asset Sub.....................................................78
Section 6.17 Covenants Regarding the Designation of Subsidiaries.................78
ARTICLE 7 - Information Covenants........................................................78
Section 7.1 Quarterly Financial Statements and Information......................79
Section 7.2 Annual Financial Statements and Information.........................79
Section 7.3 Compliance Certificates.............................................80
Section 7.4 Copies of Other Reports.............................................80
Section 7.5 Notice of Litigation and Other Matters..............................81
ARTICLE 8 - Negative Covenants...........................................................82
Section 8.1 Indebtedness........................................................82
Section 8.2 Investments.........................................................84
Section 8.3 Limitation on Liens.................................................84
Section 8.4 Amendment and Waiver................................................84
Section 8.5 Liquidation; Merger; Acquisition or Disposition of Assets...........84
Section 8.6 Limitation on Guaranties............................................86
Section 8.7 Restricted Payments and Purchases...................................87
Section 8.8 Affiliate Transactions..............................................87
Section 8.9 Corporate Name; Corporate Structure; Business.......................88
Section 8.10 Negative Pledge.....................................................88
ARTICLE 9 - Financial Covenants..........................................................88
Section 9.1 Borrower Leverage Ratio.............................................88
Section 9.2 Interest Coverage Ratio.............................................88
Section 9.3 Fixed Charge Coverage Ratio.........................................88
ARTICLE 10 - Default......................................................................88
Section 10.1 Events of Default...................................................88
Section 10.2 Remedies............................................................91
Section 10.3 Payments Subsequent to Acceleration or Maturity.....................92
Section 10.4 Remedies with Respect to FCC Authorizations.........................93
ARTICLE 11 - The Agents...................................................................93
Section 11.1 Appointment and Authorization.......................................93
Section 11.2 Interest Holders....................................................93
Section 11.3 Consultation with Counsel...........................................93
Section 11.4 Documents...........................................................94
Section 11.5 Agents' Affiliates..................................................94
Section 11.6 Responsibility of the Agents........................................94
Section 11.7 Security Documents..................................................94
Section 11.8 Action by the Agents................................................94
Section 11.9 Notice of Default or Event of Default...............................95
Section 11.10 Responsibility Disclaimed...........................................95
Section 11.11 Indemnification.....................................................96
Section 11.12 Credit Decision.....................................................96
Section 11.13 Successor Agents....................................................96
Section 11.14 Agents..............................................................97
ARTICLE 12 - Change in Circumstances Affecting Eurodollar Advances........................97
Section 12.1 Eurodollar Basis Determination Inadequate or Unfair.................97
Section 12.2 Illegality..........................................................97
Section 12.3 Increased Costs.....................................................97
Section 12.4 Effect On Other Advances............................................99
ARTICLE 13 - Miscellaneous................................................................99
Section 13.1 Notices.............................................................99
Section 13.2 Expenses...........................................................100
Section 13.3 Waivers............................................................101
Section 13.4 Set-Off............................................................101
Section 13.5 Successors and Assigns; Participations and Assignments.............102
Section 13.6 Accounting Principles..............................................106
Section 13.7 Counterparts.......................................................106
Section 13.8 Governing Law......................................................106
Section 13.9 Severability.......................................................106
Section 13.10 Interest...........................................................106
Section 13.11 Headings...........................................................107
Section 13.12 Amendment and Waiver...............................................107
Section 13.13 Entire Agreement...................................................108
Section 13.14 Other Relationships................................................108
Section 13.15 Loan Documents.....................................................108
Section 13.16 Reliance on and Survival of Various Provisions.....................108
Section 13.17 Confidentiality....................................................108
Section 13.18 Delivery of Lender Addenda.........................................109
ARTICLE 14 - Waiver of Jury Trial; Consent to Jurisdiction...............................109
Section 14.1 Waiver of Jury Trial...............................................109
Section 14.2 Consent to Jurisdiction............................................109
CREDIT AGREEMENT
AMONG
SPECTRASITE COMMUNICATIONS, INC., AS BORROWER;
SPECTRASITE, INC., AS A GUARANTOR;
TD SECURITIES (USA) LLC AND CITIGROUP GLOBAL MARKETS INC.,
AS LEAD ARRANGERS;
TD SECURITIES (USA) LLC, CITIGROUP GLOBAL MARKETS INC. AND
DEUTSCHE BANK SECURITIES, INC., AS JOINT BOOK RUNNERS;
DEUTSCHE BANK SECURITIES, INC., THE ROYAL BANK OF SCOTLAND PLC
AND XXXXXX COMMERCIAL PAPER INC.,
AS CO-ARRANGERS AND CO-DOCUMENTATION AGENTS;
CITICORP N.A., INC.,
AS SYNDICATION AGENT;
TORONTO DOMINION (TEXAS) LLC,
AS ADMINISTRATIVE AGENT;
AND
THE OTHER CREDIT PARTIES PARTY HERETO
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties to this Agreement hereby agree
as follows:
ARTICLE 1 - DEFINITIONS.
Section 1.1 DEFINITIONS. For the purposes of this Agreement:
"ACCOUNTING CHANGE" shall mean any change in accounting principles
required by any change in GAAP.
"ACQUISITION" shall mean, with respect to any Person, any transaction
or series of related transactions for the direct or indirect acquisition
(whether by purchase, lease, exchange, issuance of stock or other equity or debt
securities, merger, reorganization or any other method) by such Person of (a)
any other Person, which Person shall then become consolidated with the acquiring
Person in accordance with GAAP, (b) all or any substantial part of the assets of
any other Person, (c) any Towers, Tower Assets, Tower Sites or other
communications tower facilities, or (d) any communication tower, tower
management or related businesses (or related contracts).
"ACQUISITION EQUITY" shall mean the amount of any Net Cash Proceeds
received by Holdco or any Intermediate Holdco in connection with the issuance of
Permitted Holdco Debt that is contributed to the Borrower as New Affiliated
Equity and used by the Borrower or any of its Restricted Subsidiaries to finance
all or a portion of the cash Purchase Price for any Permitted Acquisition.
"ADDITIONAL AMOUNTS" shall have the meaning set forth in SECTION 2.13.
"ADDITIONAL INVESTMENT AVAILABILITY" shall mean, as of any date of
determination, (a) the sum of (i) Cash on Hand (Agreement Date), plus (ii) the
aggregate amount of Excess Cash Flow of the Borrower and its Restricted
Subsidiaries for the period from October 1, 2004, through the last day of the
immediately preceding fiscal quarter for which financial statements
1
have been provided pursuant to SECTION 7.1, less (b) the aggregate amount of
Investments made by the Borrower and its Restricted Subsidiaries during the
period from the Agreement Date through the date of determination utilizing
Excess Cash Flow, less (c) the aggregate amount of Excess Cash Flow used for any
other purpose during such period.
"ADJUSTMENT DATE" shall mean the second (2nd) Business Day after the
date on which the financial statements referred to in SECTION 7.1 and the
accompanying Compliance Certificate for the fiscal quarter of the Borrower
ending March 31, 2005, have been delivered to the Arrangers.
"ADMINISTRATIVE AGENT" shall mean Toronto Dominion (Texas) LLC, in its
capacity as administrative agent for the Credit Parties, together with any
successor Administrative Agent hereunder.
"ADMINISTRATIVE AGENT'S OFFICE" shall mean the office of the
Administrative Agent located at 00 Xxxx Xxxxxx Xxxx, 00xx Xxxxx, Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0, or such other office as may be designated pursuant to
the provisions of SECTION 13.1.
"ADVANCE" shall mean the aggregate amounts advanced by the Lenders to
the Borrower pursuant to Article 2 on the occasion of any borrowing; and
"ADVANCES" shall mean more than one Advance.
"AFFILIATE" shall mean, with respect to a Person, (a) any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person, and (b) any Person having direct or indirect beneficial
ownership of fifteen percent (15%) or more of the equity interest in such first
Person. For purposes of this definition, "control" when used with respect to any
Person includes, without limitation, power (whether direct or indirect) to
direct or cause the direction of the management and policies of such Person
whether through the ownership of voting securities or other equity interests, by
contract or otherwise. Unless otherwise specified, "Affiliate" as used herein
shall mean an Affiliate of the Borrower, and shall include, without limitation,
Holdco and any Intermediate Holdco.
"AGENTS" shall mean, collectively, the Arrangers and the Administrative
Agent.
"AGREEMENT" shall mean this Credit Agreement.
"AGREEMENT DATE" shall mean November 19, 2004.
"ANNUALIZED EBITDA" shall mean, as of any calculation date, the result
of (a) the sum of (i) EBITDA (Other Operations), plus (ii) Annualized EBITDA
(Tower Operations), less (b) Corporate Overhead for the twelve (12) calendar
month period ended on the last day of the calendar month most recently ended for
which financial statements are then available.
"ANNUALIZED EBITDA (TOWER OPERATIONS)" shall mean, as of any
calculation date, the product of (a) EBITDA with respect to the Tower Operations
for the calendar month most recently ended for which financial statements are
then available, times (b) twelve (12).
"APPLICABLE LAW" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limiting
the foregoing, the Necessary
2
Authorizations, the Communications Act, zoning ordinances and all Environmental
Laws, all rules, regulations and published decisions of the FCC and the FAA, and
all orders, decisions, judgments and decrees of all courts and arbitrators in
proceedings or actions to which the Person in question is a party or by which it
is bound.
"APPLICABLE MARGIN" shall mean the interest rate margin applicable to
Advances as determined in accordance with SECTION 2.3(F).
"APPROVED FUND" shall mean, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"ARRANGERS" shall mean, collectively, the Lead Arrangers, Deutsche Bank
Securities, Inc., The Royal Bank of Scotland plc and Xxxxxx Commercial Paper
Inc., in their respective capacities as arrangers under this Agreement.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" shall mean each Assignment and
Assumption Agreement, in substantially the form of EXHIBIT A attached hereto.
"AUTHORIZED SIGNATORY" shall mean such senior personnel of a Person as
may be duly authorized and designated in writing by such Person to execute
documents, agreements and instruments on behalf of such Person.
"BANKRUPTCY CODE" shall mean the United States Bankruptcy Code (11
U.S.C. Section 101 ET SEQ.), as now or hereafter amended, and any successor
statute.
"BASE RATE" shall mean, at any time, a fluctuating interest rate per
annum equal to the higher of (a) the Prime Rate or (b) the sum of (i) the
Federal Funds Rate, plus (ii) one-half of one percent (1/2%). The Base Rate
shall be adjusted automatically as of the opening of business on the effective
date of each change in the Prime Rate or the Federal Funds Rate, as the case may
be, to account for such change
"BASE RATE ADVANCE" shall mean an Advance which the Borrower requests
to be made as a Base Rate Advance or which is converted to a Base Rate Advance
in accordance with the provisions of SECTION 2.2.
"BORROWER" shall mean SpectraSite Communications, Inc., a Delaware
corporation.
"BORROWER DEBT" shall mean, as of any calculation date, all Funded Debt
of the Borrower and its Restricted Subsidiaries, on a consolidated basis,
outstanding as of such date, in each case without duplication.
"BORROWER INTEREST EXPENSE" shall mean, for any period, for the
Borrower and its Restricted Subsidiaries, on a consolidated basis, all cash
interest expense paid or accrued in respect of Borrower Debt (including, without
limitation, the interest component of payments for such period in respect of
Capitalized Lease Obligations), together with recurring fees (in any event,
including, without limitation, all fees due under SECTION 2.4) associated
therewith, after
3
giving effect to any Interest Hedge Agreements, all as determined in accordance
with GAAP, excluding underwriting, arrangement and similar fees.
"BORROWER LEVERAGE RATIO" shall mean, on any calculation date, the
ratio of (a) Borrower Debt on such date to (b) Annualized EBITDA as of such
date.
"BORROWER PLEDGE AGREEMENT" shall mean that certain Borrower Pledge
Agreement between the Borrower and the Administrative Agent, for the benefit of
the Credit Parties, dated as of the Agreement Date, in substantially the form of
EXHIBIT B attached hereto.
"BORROWER SECURITY AGREEMENT" shall mean that certain Borrower Security
Agreement between the Borrower and the Administrative Agent, for the benefit of
the Credit Parties, dated as of the Agreement Date, in substantially the form of
EXHIBIT C attached hereto.
"BUSINESS DAY" shall mean a day on which banks are open for the
transaction of business required for this Agreement in Houston, Texas, New York,
New York, and solely in the case of provisions relating to Eurodollar Advances,
London, England, as relevant to the determination to be made or the action to be
taken.
"CAPITAL EXPENDITURES" shall mean, in respect of any Person,
expenditures (including, without limitation, the aggregate principal amount of
Capitalized Lease Obligations required to be paid) incurred by such Person to
acquire or construct fixed or capital assets, plant and equipment (including,
without limitation, renewals, improvements, replacements, repairs and
maintenance, but excluding expenditures in respect of replacement assets made
using any proceeds of casualty insurance policies to the extent permitted under
this Agreement) that would be required to be capitalized on the balance sheet of
such Person in accordance with GAAP.
"CAPITALIZED LEASE OBLIGATION" shall mean that portion of any
obligation of a Person as lessee under a lease which is required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"CASH EQUIVALENTS" shall mean, collectively, (a) any Investment in
direct obligations of the United States of America or any agency thereof or
obligations Guaranteed by the United States of America or any agency thereof,
(b) Investments in time deposit accounts, certificates of deposit and money
market deposits maturing within one year of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States of America, any state thereof or any foreign country recognized by
the United States of America having capital, surplus and undivided profits
aggregating in excess of $500,000,000 (or the foreign currency equivalent
thereof) and whose long-term debt is rated "A" (or such similar equivalent
rating) or higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act) or any money
market fund sponsored by a registered broker dealer or mutual fund distributor,
(c) repurchase obligations with a term of not more than thirty (30) days for
underlying securities of the types described in clause (a) above entered into
with a bank meeting the qualifications described in clause (b) above, (d)
Investments in commercial paper, maturing not more than three hundred sixty
(360) days after the date of acquisition, issued by a corporation (other than an
Affiliate of the Borrower) organized and in existence under the laws of the
United States of America or any foreign county recognized by the United States
of America with a rating at the time as of which any Investment therein is made
of "P-1" (or higher) according to Xxxxx'x or "A-1" (or higher)
4
according to S&P, and (e) Investments in securities with maturities of twelve
(12) months or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A" by S&P
or "A" by Xxxxx'x.
"CASH ON HAND (AGREEMENT DATE)" shall mean $84,000,000, which shall be
the aggregate amount of cash-on-hand of the Borrower and its Restricted
Subsidiaries as of September 30, 2004.
"CHANGE OF CONTROL" shall mean any of the following:
(a) any "person" or "group" (as each such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for
purposes of this clause (a) such person shall be deemed to have `beneficial
ownership' of all shares that any such person has the right to acquire (whether
by warrants, options or otherwise), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of more
than thirty-five percent (35%) of the total voting power of the Voting Stock of
Holdco; or
(b) during any period of two (2) consecutive years (or, in the
case this event occurs within the two (2) year period following the Agreement
Date, such shorter period as shall have begun on the Agreement Date),
individuals who at the beginning of such period constituted the board of
directors of Holdco (together with any new directors whose election by such
board of directors or whose nomination for election by the shareholders of
Holdco was approved by a vote of a majority of the directors of Holdco then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the board of directors of Holdco then in
office; or
(c) (i) so long as any Permitted Holdco Debt then outstanding
shall contain a similar "change of control" restriction, Holdco's merger or
consolidation with or into another Person or the merger of another Person with
or into Holdco if Holdco's securities that are outstanding immediately prior to
such transaction and which represent one hundred percent (100%) of the aggregate
voting power of Holdco's Voting Stock are changed into or exchanged for cash,
securities or property, unless pursuant to such transaction such securities are
changed into or exchanged for, in addition to any other consideration,
securities of the surviving corporation that represent immediately after such
transaction, at least a majority of the aggregate voting power of the Voting
Stock of the surviving corporation, or (ii) any other change of control
restriction set forth in any Permitted Holdco Debt then outstanding; or
(d) the sale of all or substantially all of Holdco's assets to
another Person, and if Super-Holdco is formed, the sale of all or substantially
all of Intermediate Holdco's assets to another Person; or
(e) the failure of Holdco to own and control, free of any Lien or
encumbrance other than Permitted Liens, one hundred percent (100%) of the issued
and outstanding Equity Interests of (i) prior to the date Super-Holdco is
formed, the Borrower and (ii) if Super-Holdco is formed, Intermediate Holdco; or
5
(f) if Super-Holdco is formed, the failure of Intermediate Holdco
to own and control, free of any Lien or encumbrance other than Permitted Liens,
one hundred percent (100%) of the issued and outstanding Equity Interests of the
Borrower; or
(g) except to the extent that a Restricted Subsidiary may be sold
or otherwise disposed of in a Permitted Disposition, the failure of the Borrower
to own and control, free of any Lien or encumbrance other than Permitted Liens,
one hundred percent (100%) of the issued and outstanding Equity Interests of
each of its Restricted Subsidiaries (other than Foreign Restricted
Subsidiaries).
"CODE" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" shall mean all property pledged as collateral security for
the Obligations pursuant to the Security Documents or otherwise to the extent
set forth in the Security Documents, and all other property of the Borrower or
any of the Subsidiary Guarantors that is now or hereafter in the possession or
control of any Credit Party or in which any Credit Party has been granted a
Lien.
"COMMITMENT RATIO" shall mean, as to any Lender, (a) with respect to
the Revolving Loan Commitments, the ratio (expressed as a percentage) of (i) the
Revolving Loan Commitment of such Lender, divided by (ii) the aggregate
Revolving Loan Commitments of all of the Lenders, (b) with respect to the Term A
Loan Commitments, the ratio (expressed as a percentage) of (i) the Term A Loan
Commitment of such Lender, divided by (ii) the aggregate Term A Loan Commitments
of all of the Lenders, (c) with respect to the Term B Loan Commitments, the
ratio (expressed as a percentage) of (i) the Term B Loan Commitment of such
Lender, divided by (ii) the aggregate Term B Loan Commitments of all of the
Lenders, and (d) with respect to any Incremental Facility Commitments, the ratio
(expressed as a percentage) of (i) the applicable Incremental Facility
Commitment of such Lender, divided by (ii) the aggregate applicable Incremental
Facility Commitments of all of the Lenders.
"COMMITMENTS" shall mean, collectively, the Revolving Loan Commitments,
the Term A Loan Commitments, the Term B Loan Commitments and, if applicable, the
Incremental Facility Commitments.
"COMMUNICATIONS ACT" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as amended and as the same may be in effect from time to time.
"COMPLIANCE CERTIFICATE" shall mean a certificate of a Financial Officer of the
Borrower as to its financial performance, in substantially the form attached
hereto as EXHIBIT D.
"CORPORATE OVERHEAD" shall mean, for any period, the result of (a) the
Borrower's selling, general and administrative expenses during such period, less
(b) any pro forma adjustments, which shall be reasonably satisfactory to each of
the Lead Arrangers, to the selling, general and administrative expense of any
Person that became, or ceased to be, a Restricted Subsidiary or was merged with
or consolidated into, or was sold or disposed of by, the Borrower or a
Restricted Subsidiary during such period.
6
"CREDIT PARTIES" shall mean, collectively, the Administrative Agent,
the Lenders (including, without limitation, the Incremental Facility Lenders)
and the Issuing Bank.
"CREDIT SUPPORT PROVIDER" shall have the meaning set forth in SECTION
13.5(K).
"CURRENCY HEDGE AGREEMENTS" shall mean any foreign currency hedge
agreements arising at any time between the Borrower, on the one hand, and any
one or more of the Lenders, or any other Person (other than an Affiliate of the
Borrower), on the other hand.
"DEFAULT" shall mean any Event of Default, and any of the events
specified in SECTION 10.1, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event an Event of Default.
"DEFAULT RATE" shall mean, with respect to any Advance, a simple per
annum interest rate equal to the sum of (a) the rate of interest (including the
Applicable Margin) then in effect with respect to such Advance, and (b) two
percent (2%).
"DOLLAR EQUIVALENT AMOUNT" shall mean, with respect to (a) any amount
of any currency other than Dollars on any date, the equivalent amount in Dollars
of such amount of currency as determined by the Administrative Agent in
accordance with SECTION 2.3(G) using the spot exchange rate of such currency
into Dollars determined as of 11:00 a.m. (New York time) on the applicable
calculation date, and (b) any amount in Dollars, such amount.
"DOLLARS" or "$" shall mean the basic unit of the lawful currency of
the United States of America.
"EBITDA" shall mean, for any period, for the Borrower and its
Restricted Subsidiaries on a consolidated basis, the sum of (a) Net Income, plus
(b) to the extent deducted in determining Net Income, the result of (i) the sum
of each of the following for such period: (A) Borrower Interest Expense, (B)
income tax expense, (C) depreciation and amortization, (D) extraordinary losses,
(E) all other non-cash interest or charges and (F) non-recurring charges,
restructuring charges, transaction expenses and underwriters' fees, less (ii)
extraordinary gains and cash payments (not otherwise deducted in determining Net
Income) made during such period with respect to non-cash charges that were added
back in a prior period; PROVIDED, HOWEVER, (I) with respect to any Person that
became a Restricted Subsidiary, or was merged with or consolidated into the
Borrower or any of its Restricted Subsidiaries, during such period, or the
Acquisition by the Borrower or any of its Restricted Subsidiaries of a
substantial part of the assets of any Person, or the Acquisition by the Borrower
or any of its Restricted Subsidiaries of any Towers, Tower Sites or other
communications tower facilities, communications tower management businesses or
related contracts, "EBITDA" shall also include (x) the EBITDA of such Person or
attributable to such assets, as applicable, during such period as if such
Acquisition, merger or consolidation had occurred on the first day of such
period, and (y) an amount equal to the projected expense savings to be realized
by the Borrower or such Subsidiary, as the case may be, in connection with such
Acquisition, as demonstrated to the reasonable satisfaction of and approved by
the Lead Arrangers, and (II) with respect to any Person that has ceased to be a
Restricted Subsidiary during such period, or any material assets of the Borrower
or any of its Restricted Subsidiaries sold or otherwise disposed of by the
Borrower or any such Restricted Subsidiary during such period, "EBITDA" shall
exclude the EBITDA of such Person or attributable to such assets, as applicable,
during such period as if such sale or disposition of
7
such Restricted Subsidiary or such assets had occurred on the first day of such
period; PROVIDED FURTHER, HOWEVER, that solely for purposes of determining
Annualized EBITDA (Tower Operations) and EBITDA (Other Operations), "EBITDA"
shall be the sum of (I) EBITDA as determined based on the foregoing calculation,
plus (II) Corporate Overhead for the relevant period; PROVIDED FURTHER, HOWEVER,
that the calculation of "EBITDA" for any period (x) shall not include the
portion of EBITDA generated by Foreign Restricted Subsidiaries for such period
in excess of ten percent (10%) of the total amount of EBITDA for the Borrower
and all of its Restricted Subsidiaries for such period and (y) with respect to
non-wholly owned Foreign Restricted Subsidiaries, shall only include the portion
of any such Foreign Restricted Subsidiary's EBITDA attributable to the
Borrower's pro rata share of the Equity Interests of such Foreign Restricted
Subsidiary.
"EBITDA (OTHER OPERATIONS)" shall mean, as of any calculation date,
EBITDA with respect to the Other Operations for the twelve (12) calendar month
period ended on the last day of the calendar month most recently ended for which
financial statements are then available.
"ELIGIBLE ASSIGNEE" shall mean (a) a Lender, (b) an Affiliate of a
Lender, (c) an Approved Fund, or (d) any other Person (other than a natural
Person) approved by the Administrative Agent and, unless a Default has occurred
and is continuing, the Borrower (such approval of the Administrative Agent and
the Borrower not to be unreasonably withheld or delayed).
"ENVIRONMENTAL LAWS" shall mean, with respect to any Person, all
applicable federal, state, local and municipal laws, statutes, rules,
regulations and ordinances, codes, common law, consent agreements to which such
Person is a party or by which it is bound, orders, decrees, judgments,
injunctions, permits, licenses, authorizations and other requirements issued,
promulgated, approved or entered thereunder affecting such Person or its
property and relating to, or imposing liability or standards of conduct
concerning, public or occupational health, safety or the pollution or protection
of the environment, including, without limitation, those relating to releases,
discharges, emissions, spills, leaching, or disposals to, on, under, or in air,
water, land or ground water, to the withdrawal or use of ground water, to the
use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances.
"EQUITY INTERESTS" shall mean, as applied to any Person, any capital
stock (common or preferred), general or limited partnership interests, limited
liability company interests or other equivalents of such Person, regardless of
class or designation, and all warrants, options, purchase rights, conversion or
exchange rights, voting rights, calls or claims of any character with respect
thereto.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
"ERISA AFFILIATE" shall mean any trade or business (whether or not
incorporated) under common control with, or would be considered a single
employer with, the Borrower within the meaning of Section 414(b) or (c) of the
Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code) or pursuant to Section 4001(b) of ERISA and
the regulations promulgated thereunder.
8
"EURODOLLAR ADVANCE" shall mean an Advance which the Borrower requests
to be made as a Eurodollar Advance or which is continued as or converted to a
Eurodollar Advance in accordance with the provisions of SECTION 2.2.
"EURODOLLAR ADVANCE PERIOD" shall mean, in connection with any
Eurodollar Advance, the term of such Advance selected by the Borrower, which may
be one (1), two (2), three (3) or six (6) months, and subject to the last
proviso of this definition, nine (9) or twelve (12) months, or otherwise
determined in accordance with this Agreement; PROVIDED, HOWEVER, notwithstanding
the foregoing, (a) any applicable Eurodollar Advance Period which would
otherwise end on a day which is not a Business Day shall be extended to the
succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Eurodollar Advance Period shall end on the preceding
Business Day, (b) any applicable Eurodollar Advance Period which begins on a day
for which there is no numerically corresponding day in the calendar month during
which such Eurodollar Advance Period is to end shall (subject to clause (a)
above) end on the last day of such calendar month, and (c) no Eurodollar Advance
Period shall extend beyond the applicable Maturity Date or such earlier date as
would interfere with the Borrower's repayment obligations under SECTIONS 2.6 or
2.7; PROVIDED FURTHER, HOWEVER, the Borrower may not select a Eurodollar Advance
Period in excess of six (6) months unless the Administrative Agent has notified
the Borrower that each applicable Lender has consented to such Eurodollar
Advance Period.
"EURODOLLAR BASE RATE" shall mean, with respect to each day during each
Eurodollar Advance Period, the rate per annum determined by the Administrative
Agent to be the arithmetic mean (rounded, if necessary, to the nearest 1/100th
of 1%) of the offered rates for deposits in Dollars with a term comparable to
such Eurodollar Advance Period that appears on the Telerate British Bankers
Assoc. Interest Settlement Rates Page at approximately 11:00 a.m. (London time),
on the second (2nd) full Business Day preceding such Eurodollar Advance Period;
PROVIDED, HOWEVER, that if there shall at any time no longer exist a Telerate
British Bankers Assoc. Interest Settlement Rates Page, "EURODOLLAR BASE RATE"
shall mean, with respect to each day during each Eurodollar Advance Period, the
rate per annum equal to the rate at which the Administrative Agent is offered
Dollar deposits at or about 11:00 a.m. (New York time), two (2) Business Days
prior to the beginning of such Eurodollar Advance Period in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Advances are then being conducted for
delivery on the first day of such Eurodollar Advance Period for the number of
days comprised therein and in the amount comparable to the amount of its
Eurodollar Advance to be outstanding during such Eurodollar Advance Period. As
used herein, "TELERATE BRITISH BANKERS ASSOC. INTEREST SETTLEMENT RATES PAGE"
shall mean the display designated as page 3750 on the Telerate System
Incorporated Service (or such other page as may replace such page on such
service for the purpose of displaying the rates at which Dollar deposits are
offered by leading banks in the London interbank deposit market).
"EURODOLLAR RATE" shall mean, with respect to each day during each
Eurodollar Advance Period, a rate per annum determined for such day in
accordance with the following formula (rounded, if necessary, upward to the
nearest 1/100th of 1%):
EURODOLLAR BASE RATE
---------------------------------------------
1.00 - Eurodollar Reserve Percentage
9
"EURODOLLAR RESERVE PERCENTAGE" shall mean, for any day as applied to a
Eurodollar Advance, the aggregate (without duplication) of the rates (expressed
as a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of the Federal Reserve System.
"EVENT OF DEFAULT" shall mean any of the events specified in SECTION
10.1, provided that any requirement for notice or lapse of time or both has been
satisfied.
"EXCESS CASH FLOW" shall mean, with respect to the Borrower and its
Restricted Subsidiaries, on a consolidated basis as of the end of any fiscal
quarter of the Borrower and based on the unaudited or audited financial
statements required to be provided under SECTION 7.1 or SECTION 7.2, as
applicable, for such fiscal quarter or the fiscal year in which such fiscal
quarter falls, as applicable, the excess, to the extent that such excess is a
positive number, without duplication, of (a) EBITDA for such fiscal quarter,
minus (b) the sum of the following: (i) the greater of (A) Capital Expenditures
made (other than from capital contributions made to the Borrower, from the
proceeds of the incurrence of Indebtedness or from the reinvestment of the Net
Cash Proceeds of any sale, transfer or other disposition of assets of the
Borrower or any of its Restricted Subsidiaries or any insurance or condemnation
proceeding with respect to such assets, to the extent permitted hereunder) by
the Borrower and its Restricted Subsidiaries during such fiscal quarter and (B)
an amount equal to the total forecasted Capital Expenditures for such fiscal
quarter set forth in the annual budget delivered by the Borrower pursuant to
SECTION 7.4(D) for the fiscal year in which such fiscal quarter falls, less an
amount equal to Capital Expenditures made during such fiscal quarter from
capital contributions made to the Borrower, from the proceeds of the incurrence
of Indebtedness or from the reinvestment of the Net Cash Proceeds of any sale,
transfer or other disposition of assets of any Borrower or any of its Restricted
Subsidiaries or any insurance or condemnation proceeding with respect to such
assets, to the extent permitted hereunder; (ii) taxes payable in cash by the
Borrower and its Restricted Subsidiaries during such fiscal quarter; (iii)
Borrower Interest Expense during such fiscal quarter; (iv) principal payments
made during such fiscal quarter by the Borrower and its Restricted Subsidiaries
in respect of Borrower Debt (other than (x) from the proceeds of capital
contributions made to the Borrower, the proceeds of the incurrence of
Indebtedness or from the reinvestment of the Net Cash Proceeds of any sale,
transfer or other disposition of assets of the Borrower or any of its Restricted
Subsidiaries or any insurance or condemnation proceeding with respect to such
assets, to the extent permitted hereunder and (y) with respect to the Revolving
Loans and loans by the Borrower or any Restricted Subsidiary to the Borrower or
any of its Restricted Subsidiaries); and (v) the amount of any Restricted
Payments (other than Specified Holdco Distributions) made to Holdco; PROVIDED,
HOWEVER, with respect to the calculation of Excess Cash Flow for the fourth
quarter of each fiscal year of the Borrower and its Restricted Subsidiaries, the
amount of Excess Cash Flow determined by application of the foregoing shall be
increased by an amount equal to the excess, if to the extent that such excess is
a positive number, of (x) an amount equal to the total forecasted Capital
Expenditures for the fiscal year in which such fiscal quarter falls set forth in
the annual budget delivered by the Borrower pursuant to SECTION 7.4(D) for such
fiscal year, less an amount equal to Capital Expenditures made during such
fiscal year from capital contributions made to the Borrower, from the proceeds
of the
10
incurrence of Indebtedness or from the reinvestment of the Net Cash Proceeds of
any sale, transfer or other disposition of assets of any Borrower or any of its
Restricted Subsidiaries or any insurance or condemnation proceeding with respect
to such assets, to the extent permitted hereunder, minus (y) Capital
Expenditures made (other than from capital contributions made to the Borrower,
from the proceeds of the incurrence of Indebtedness or from the reinvestment of
the Net Cash Proceeds of any sale, transfer or other disposition of assets of
the Borrower or any of its Restricted Subsidiaries or any insurance or
condemnation proceeding with respect to such assets, to the extent permitted
hereunder) by the Borrower and its Restricted Subsidiaries during such fiscal
year.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as it
may be amended, and any successor act thereto.
"EXCLUDED TAXES" shall have the meaning set forth in SECTION 2.13(A).
"EXEMPTION CERTIFICATE" shall have the meaning set forth in SECTION
2.13.
"EXISTING CREDIT AGREEMENT" shall mean that certain Amended and
Restated Credit Agreement dated as of February 22, 2001, among the Borrower,
Holdco, CIBC World Markets Corp. and Credit Suisse First Boston, as joint lead
arrangers and bookrunners, CIBC World Markets Corp., Credit Suisse First Boston,
Bank of Montreal, Chicago Branch, and TD Securities (USA) LLC, as arrangers,
Credit Suisse First Boston, as syndication agent, Bank of Montreal, Chicago
Branch and TD Securities (USA) LLC, as co-documentation agents, Canadian
Imperial Bank of Commerce, as administrative agent and collateral agent, and the
other Credit Parties (as defined therein) party thereto, as heretofore amended,
modified, restated and supplemented.
"EXISTING LETTERS OF CREDIT" shall mean, collectively, the letters of
credit listed on SCHEDULE 1 issued for the account of the Borrower pursuant to
the terms of the Existing Credit Agreement.
"FAA" shall mean the Federal Aviation Administration, or any other
similar or successor agency of the federal government.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"FEDERAL FUNDS RATE" shall mean, as of any date, the weighted average
of the rates on overnight federal funds transactions with the 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 New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"FINAL MATURITY DATE" shall mean the latest to occur of the Maturity
Dates.
"FINANCIAL COVENANTS" shall mean from time to time the financial
covenants applicable to the Borrower from time to time as set forth in Article 9
hereof.
11
"FINANCIAL OFFICER" shall mean, with respect to any Person, the chief
financial officer, treasurer or vice president of finance of such Person.
"FINANCIAL STATEMENTS" shall have the meaning assigned thereto in
SECTION 5.1(K).
"FIXED CHARGE COVERAGE RATIO" shall mean, on any calculation date, for
the Borrower and its Restricted Subsidiaries, on a consolidated basis, the ratio
of (a) Annualized EBITDA as at such date, to (b) the amount of Fixed Charges
during the immediately preceding four (4) fiscal quarter period.
"FIXED CHARGES" shall mean, for any period, for the Borrower and its
Restricted Subsidiaries, on a consolidated basis, the sum of the following for
such period: (a) cash Borrower Interest Expense; (b) mandatory, permanent
scheduled principal repayments with respect to Borrower Debt; (c) Maintenance
Capital Expenditures; (d) taxes payable in cash; and (e) the amount of any
Restricted Payments (other than any Specified Holdco Distributions) made to
Holdco.
"FOREIGN LENDER" shall have the meaning set forth in SECTION 2.13.
"FOREIGN RESTRICTED SUBSIDIARIES" shall mean Foreign Subsidiaries
organized under the laws of Canada or the Republic of Mexico or any province or
other political subdivision thereof, to the extent not designated by the
Borrower as Unrestricted Subsidiaries in accordance with the terms and
conditions of this Agreement.
"FOREIGN SUBSIDIARIES" shall mean the direct or indirect Subsidiaries
of the Borrower that are organized under the laws of a jurisdiction other than
the United States or any state thereof or the District of Columbia.
"FUNDED DEBT" shall mean, with respect to any Person as of any
calculation date, the sum of the following as of such date: (a) the principal
amount of all outstanding Indebtedness for money borrowed of such Person; (b)
the principal amount of all Indebtedness for money borrowed Guaranteed by such
Person; (c) the stated amount of all letters of credit issued for the account of
such Person; (d) all Capitalized Lease Obligations of such Person; and (e) if a
Default or Event of Default then exists hereunder or a default then exists under
any Interest Hedge Agreement or under any Currency Hedge Agreement, all
obligations of such Person under any Interest Hedge Agreements and under any
Currency Hedge Agreements valued on a marked to market basis on the date of
determination; PROVIDED, HOWEVER, that notwithstanding anything in GAAP to the
contrary, for purposes of calculating Funded Debt, the amount of each of the
foregoing obligations shall be the full face or, in the case of discount
obligations, accreted amount of such obligations without giving effect to any
adjustments thereto which may be required under GAAP.
"GAAP" shall mean generally accepted accounting principles in the
United States, consistently applied.
"GOVERNMENTAL AUTHORITY" shall mean any government or political
subdivision of the United States or any other country or any agency, authority,
board, bureau, central bank, commission, department or instrumentality thereof
or therein, including, without limitation, any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic, or any entity
12
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to such government or political subdivision.
"GRANTING LENDER" shall have the meaning assigned thereto in SECTION
13.5(K). "GUARANTORS" shall mean, collectively, Holdco, any Intermediate Holdco
and each of the Subsidiary Guarantors.
"GUARANTY" or "GUARANTEED," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations with respect to outstanding letters of credit, but not
including any endorsements of any instrument for collection in the ordinary
course of business.
"HAZARDOUS MATERIALS" shall mean any substances, materials, compounds
or wastes defined, listed, or subject to control under any Environmental Law as
being hazardous, toxic, extremely hazardous or dangerous.
"HOLDCO" shall mean (a) prior to the date Super-Holdco is formed,
SpectraSite, Inc., a Delaware corporation, which owns 100% of the issued and
outstanding Equity Interests of the Borrower, and (b) from and after the date
Super-Holdco is formed, Super-Holdco, which owns 100% of the issued and
outstanding Equity Interests of Intermediate Holdco.
"HOLDCO EBITDA" shall mean, for any period, for Holdco and its
Subsidiaries on a consolidated basis, the sum of (a) Holdco Net Income, plus (b)
to the extent deducted in determining Holdco Net Income, the result of (i) the
sum of each of the following for such period: (A) Holdco Interest Expense, (B)
income tax expense, (C) depreciation and amortization, (D) extraordinary losses,
(E) all other non-cash interest or charges and (F) non-recurring charges,
restructuring charges, transaction expenses and underwriters' fees, less (ii)
extraordinary gains and cash payments (not otherwise deducted in determining
Holdco Net Income) made during such period with respect to non-cash charges that
were added back in a prior period; PROVIDED, HOWEVER, (I) with respect to any
Person that became a Subsidiary of Holdco, or was merged with or consolidated
into Holdco or any Subsidiary of Holdco, during such period, or the Acquisition
by Holdco or any of its Subsidiaries of a substantial part of the assets of any
Person, or the Acquisition by Holdco or any of its Subsidiaries of any Towers,
Tower Sites or other communications tower facilities, communications tower
management businesses or related contracts, "Holdco EBITDA" shall also include
(x) the EBITDA of such Person or attributable to such assets, as applicable,
during such period as if such Acquisition, merger or consolidation had occurred
on the first day of such period, and (y) with respect to any Acquisition by the
Borrower or any Restricted Subsidiary, an amount equal to the projected expense
savings to be realized by the Borrower or any such Restricted Subsidiary, as the
case may be, in connection with such Acquisition, as demonstrated to the
reasonable satisfaction of and approved by the Lead Arrangers, and (II) with
respect to any Person that has ceased to be a Subsidiary of Holdco during such
period, or any material assets of Holdco or any of its Subsidiaries sold or
otherwise disposed of by Holdco or any such Subsidiary during such period,
"Holdco EBITDA" shall exclude the EBITDA of such Person or attributable to such
assets, as
13
applicable, during such period as if such sale or disposition of such Subsidiary
or such assets had occurred on the first day of such period.
"HOLDCO INTEREST EXPENSE" shall mean, for any period, for Holdco and
its Subsidiaries on a consolidated basis, all cash interest expense paid or
accrued in respect of Funded Debt (including, without limitation, the interest
component of payments for such period in respect of Capitalized Lease
Obligations), together with recurring fees (in any event, including, without
limitation, all fees due under SECTION 2.4) associated therewith), after giving
effect to any Interest Hedge Agreements, all as determined in accordance with
GAAP, excluding underwriting, arrangement and similar fees.
"HOLDCO NET INCOME" shall mean, for Holdco and its Subsidiaries on a
consolidated basis, for any period, net income determined in accordance with
GAAP.
"HOLDCO 8 1/4 SENIOR NOTES INDENTURE" shall mean that certain Indenture
dated as of May 21, 2003, between SpectraSite, Inc. and The Bank of New York, as
trustee related to SpectraSite, Inc.'s 8 1/4 Senior Notes due 2010.
"HOLDCO PLEDGE AGREEMENT" shall mean that certain Holdco Pledge
Agreement between Holdco and the Administrative Agent, for the benefit of the
Credit Parties, dated as of the Agreement Date, in substantially the form of
EXHIBIT E attached hereto, and any similar pledge agreement or any pledge
agreement supplement delivered pursuant to SECTION 6.15 upon the formation of
any Super-Holdco, by Holdco and Intermediate Holdco.
"INCREMENTAL FACILITY" shall mean the additional Funded Debt that the
Borrower may request pursuant to SECTION 2.15, which shall be subject to the
terms and conditions of this Agreement.
"INCREMENTAL FACILITY COMMITMENT" shall mean the commitment of any
Lender or Lenders to make Advances to the Borrower in accordance with SECTION
2.15 (the Borrower may obtain an Incremental Facility Commitment from more than
one Lender, which commitment shall be the several obligation of each such
Lender); and "INCREMENTAL FACILITY COMMITMENTS" shall mean the aggregate of the
Incremental Facility Commitments of all Lenders.
"INCREMENTAL FACILITY LENDER" shall mean any Lender having an
Incremental Facility Commitment or making Incremental Facility Loans pursuant to
this Agreement.
"INCREMENTAL FACILITY LOANS" shall mean the amounts advanced by the
Lenders holding an Incremental Facility Commitment to the Borrower as
Incremental Facility Loans under an Incremental Facility Commitment, not to
exceed, in the aggregate, the amount of the applicable Incremental Facility
Commitment.
"INCREMENTAL FACILITY MATURITY DATE" shall mean the maturity date for
any Incremental Facility as set forth in the Notice of Incremental Facility
Commitment applicable thereto.
"INCREMENTAL FACILITY NOTES" shall mean those certain Incremental
Facility Loan promissory notes issued by the Borrower to each of the Lenders
issuing an Incremental Facility Commitment that requests a promissory note in
accordance with such Lender's applicable
14
Incremental Facility Commitment, each one substantially in the form of EXHIBIT F
attached hereto.
"INDEBTEDNESS" shall mean, with respect to any Person, and without
duplication, (a) all indebtedness for money borrowed of such Person, (b) all
obligations of such Person for the deferred purchase price (to the extent
determinable) of property or services (other than current trade payables
incurred in the ordinary course of such Person's business), (c) all obligations
of such Person evidenced by notes, bonds, debentures or similar instruments, (d)
all indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations of such Person, contingent or otherwise, as an account party or
applicant under or in respect of acceptances, letters of credit, surety bonds or
similar arrangements, (f) the liquidation value of all redeemable preferred
Equity Interests of such Person subject to any mandatory redemption prior to the
date that is six (6) months after the Final Maturity Date, (g) all direct or
indirect obligations of any other Person secured by any Lien to which any
property or asset owned by such Person is subject, whether or not the obligation
secured thereby shall have been assumed, (h) to the extent not otherwise
included, any Guaranty and all Capitalized Lease Obligations of such Person and
(i) all obligations of such Person under any Interest Hedge Agreements and under
any Currency Hedge Agreements valued on a marked to market basis on the date of
determination.
"INDEMNIFIED PARTIES" shall mean those Persons eligible to be
indemnified by the Borrower and the Guarantors pursuant to this Agreement, and
shall include each of the Credit Parties and each of their respective employees,
representatives, officers, agents, directors, trustees and affiliates.
"INSOLVENCY PROCEEDING" shall mean, with respect to any Person, any
insolvency, receivership, bankruptcy, dissolution, liquidation, or
reorganization proceeding, or any other proceeding, whether voluntary or
involuntary, by or against such Person, under any bankruptcy or insolvency law
or laws, federal or state, relating to the relief of debtors of any
jurisdiction, whether now or hereafter in effect, and in any out-of-court
composition, assignment for the benefit of creditors, readjustment of
Indebtedness, reorganization, extension or other debt arrangement of any kind.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" shall mean that certain
Intellectual Property Security Agreement among the Borrower, each of the
Subsidiary Guarantors having any rights with respect to any trademarks or
trademark registrations and the Administrative Agent, for the benefit of the
Credit Parties, dated as of the Agreement Date, in substantially the form of
EXHIBIT G attached hereto, and any similar intellectual property security
agreement or any intellectual property security agreement supplement delivered
pursuant to SECTION 6.15.
"INTEREST COVERAGE RATIO" shall mean, on any calculation date, for the
Borrower and its Restricted Subsidiaries, on a consolidated basis, the ratio of
(a) Annualized EBITDA as at such date, to (b) cash Borrower Interest Expense for
the immediately preceding four (4) fiscal quarter period.
"INTEREST HEDGE AGREEMENTS" shall mean any interest rate swap, cap,
collar, floor, caption or swaption agreements, or any similar arrangements
designed to hedge the risk of
15
variable interest rate volatility or to reduce interest costs, arising at any
time between the Borrower, on the one hand, and any one or more of the Lenders,
or any other Person (other than an Affiliate of the Borrower), on the other
hand, as such agreement or arrangement may be modified, supplemented and in
effect from time to time.
"INTERMEDIATE HOLDCO" shall mean, from and after the date Super-Holdco
is formed, the company which owns 100% of the issued and outstanding Equity
Interests of the Borrower.
"INVESTMENT" shall mean, with respect to any Person, any loan, advance
or extension of credit (other than to customers, lessees or licensees in the
ordinary course of business) by such Person to, or any Guaranty or other
contingent liability with respect to the Equity Interests, Funded Debt, or other
obligations of, or any contributions to the capital of, any other Person, or any
ownership, purchase or other acquisition by such Person of any interest in any
Equity Interests or other securities of any such other Person, other than an
Acquisition; and "INVEST," "INVESTING" or "INVESTED" shall mean the making of an
Investment. "INVESTMENT" shall also include the total cost of any future
commitment or other obligation binding on any Person to make an Investment or
any subsequent Investment.
"ISSUING BANK" shall mean The Toronto-Dominion Bank, New York Branch,
any Lender or any of their respective Affiliates, in each case as issuer of any
Letter of Credit hereunder.
"JUDGMENT CURRENCY" shall have the meaning set forth in SECTION
2.11(D).
"L/C OBLIGATIONS" shall mean, at any date, the sum of (a) the aggregate
amount then available to be drawn under all outstanding Letters of Credit and
(b) the aggregate amount of drawings under Letters of Credit which have not then
been reimbursed by the Borrower pursuant to SECTION 2.14(E).
"L/C PARTICIPANTS" shall mean with respect to any Letter of Credit,
collectively, all of the Lenders which have a Revolving Loan Commitment other
than the applicable Issuing Bank.
"L/C PARTICIPATING INTEREST" shall mean with respect to any Letter of
Credit (a) in the case of the Issuing Bank with respect thereto, its interest in
such Letter of Credit and any Letter of Credit Application relating thereto
after giving effect to the granting of participating interests therein, if any,
pursuant hereto and (b) in the case of each L/C Participant, its undivided
participating interest in such Letter of Credit and any Letter of Credit
Application relating thereto.
"LEAD ARRANGERS" shall mean, collectively, TD Securities (USA) LLC and
Citigroup Global Markets Inc., in their respective capacities as lead arrangers
under this Agreement.
"LENDER ADDENDUM" shall mean, with respect to any initial Lender, a
Lender Addendum, substantially in the form of EXHIBIT H attached hereto, to be
executed and delivered by such Lender on the Agreement Date as provided in
SECTION 13.18.
16
"LENDERS" shall mean the financial institutions or other entities that
from time to time become parties to this Agreement as Lenders.
"LETTER OF CREDIT APPLICATION" shall mean an application in such form
as an Issuing Bank may specify from time to time requesting such Issuing Bank to
issue a Letter of Credit.
"LETTER OF CREDIT COMMITTED AMOUNT" shall mean $75,000,000.
"LETTERS OF CREDIT" shall mean any and all letters of credit issued by
any Issuing Bank for the account of the Borrower pursuant to SECTION 2.14.
"LIEN" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other similar encumbrance of any kind in respect of
such property, whether created by statute, contract, common law or otherwise,
and whether xxxxxx or inchoate, vested or perfected.
"LOAN DOCUMENTS" shall mean, without limitation, this Agreement, the
Notes, the Subsidiary Guaranty, the Security Documents, the Nextel Intercreditor
Agreement, the Nextel Intercreditor Notice, all Requests for Advance, all
Requests for Issuance of Letters of Credit, all Compliance Certificates, all
Permitted Hedge Agreements with a Lender or any Affiliate of a Lender, any
documents executed in connection with the Incremental Facility Loans, any fee
letters executed by the Borrower in favor of the Administrative Agent with
respect to certain fees payable in connection with the administration of this
Agreement, and any other document or agreement or certificate (including,
without limitation, any legal opinion issued by counsel for the Borrower or any
of its Affiliates and any reliance letter issued with respect to any such legal
opinion) executed or delivered in connection with or contemplated by this
Agreement.
"LOANS" shall mean, collectively, the Revolving Loans, the Term Loans
and, if applicable, the Incremental Facility Loans.
"MAINTENANCE CAPITAL EXPENDITURES" shall mean, for any period, with
respect to the Borrower and its Restricted Subsidiaries, all Capital
Expenditures made by such Persons, minus, to the extent included in Capital
Expenditures, (a) the Purchase Price of all Acquisitions by such Persons and (b)
Capital Expenditures made in connection with the construction of towers or
transmission sites or other fixed assets or property, plant or equipment by such
Person.
"MAJORITY LENDERS" shall mean (a) prior to the occurrence of an Event
of Default and the termination of Unfunded Commitments, Lenders the sum of whose
Unfunded Commitments plus Loans outstanding exceeds 50% of the sum of such items
for all Lenders, or (b) at any time that there exists an Event of Default
hereunder and Unfunded Commitments have been terminated, Lenders the total of
whose Loans (including, with respect to each L/C Participant, the amount of its
L/C Participating Interest) outstanding exceeds 50% of the total principal
amount of the Loans and the L/C Participating Interests then outstanding
hereunder.
"MATERIAL CONTRACT" shall mean any contract, agreement or commitment to
which the Borrower or any of its Restricted Subsidiaries is a party (a) that
relates to any Material
17
Towers or (b) the termination of which could reasonably be expected to have a
Materially Adverse Effect.
"MATERIAL TOWERS" shall mean, as of any date of determination, any
Tower or any group or set of Towers wheresoever located to which more than ten
percent (10%) of Annualized EBITDA for the twelve (12) month period most
recently ended is attributable.
"MATERIALLY ADVERSE EFFECT" shall mean (a) any material adverse effect
upon the business, operations, properties, condition (financial or otherwise),
capitalization, assets or liabilities or results of operations of the Borrower
and its Restricted Subsidiaries, taken as a whole, or upon the ability of the
Borrower and its Restricted Subsidiaries, taken as a whole, to conduct the Tower
Operations, or (b) a material adverse effect upon the binding nature, validity,
or enforceability of this Agreement, the Notes and the other Loan Documents or
upon the ability of the Borrower or any of the Guarantors to perform the payment
obligations or other material obligations under this Agreement or any other Loan
Document, or upon the rights, benefits or interests of the Lenders in and to the
Loans or the rights of the Administrative Agent in the Collateral; in any case,
whether resulting from any single act, omission, situation, status, event or
undertaking, or taken together with other such acts, omissions, situations,
statuses, events or undertakings.
"MATURITY DATE" shall mean, with respect to all amounts owing, or
Advances made, under (a) the Revolving Loan Commitments, the Revolving Loan
Maturity Date, (b) the Term A Loan Commitments, the Term A Loan Maturity Date,
(c) the Term B Loan Commitments, the Term B Loan Maturity Date, and (d) any
Incremental Facility Commitments, the Incremental Facility Maturity Date
applicable thereto.
"XXXXX'X" shall mean Xxxxx'x Investor's Service, Inc., and its
successors.
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"NECESSARY AUTHORIZATIONS" shall mean any local zoning ordinances and
any rights, whether based upon any agreement, statute, order or otherwise,
licenses, authorizations, permits, consents, approvals, registrations,
certificates, agreements, permits or other rights filed with, granted by or
entered into by a federal or state governmental authority (including, without
limitation, the FAA and the FCC) which permit or authorize the construction or
maintenance of a Tower or the use of a Tower by the Borrower or any of its
Restricted Subsidiaries, together with any amendment, modification or
replacement with respect thereto.
"NET INCOME" shall mean, for any period of determination, net income of
the Borrower and its Restricted Subsidiaries, on a consolidated basis,
determined in accordance with GAAP.
"NET CASH PROCEEDS" shall mean, with respect to any sale, lease,
transfer or other disposition (including, without limitation, by casualty loss
or condemnation) of assets by the Borrower or any of its Restricted Subsidiaries
(a "SALES TRANSACTION"), the aggregate amount of cash received by the Borrower
or such Restricted Subsidiary for such assets (including, without limitation,
any payments received in respect of covenants not to compete, consulting or
management fees, and any principal portion of the amount received in cash upon
payment of a
18
buyer promissory note or other evidence of Indebtedness), net of (i) taxes
payable with respect to any such Sales Transaction, (ii) contingencies with
respect to any such Sales Transaction, appropriately reserved for by the
Borrower or the applicable Restricted Subsidiary under GAAP, (iii) reasonable
and customary transaction costs properly attributable to such Sales Transaction
and payable by the Borrower or any of its Restricted Subsidiaries (other than to
an Affiliate) in connection with such Sales Transaction, including, without
limitation, sales commissions and underwriting discounts, and (iv) all payments
made on any Indebtedness which is secured by any assets subject to such Sales
Transaction in accordance with the terms of any Lien upon or other security
arrangement of any kind with respect to such assets, or which must by its terms,
or in order to obtain a necessary consent to such Sales Transaction or by
Applicable Law be repaid out of the proceeds from such Sales Transaction.
"NEW AFFILIATED EQUITY" shall mean the sum of any amounts Invested by
Holdco or any Intermediate Holdco in the Borrower, in the form of a common
equity contribution or issuance, in connection with the issuance of any Equity
Interests or Permitted Debt by Holdco or any Intermediate Holdco after the
Agreement Date.
"NEXTEL" shall mean Nextel Communications, Inc., a Delaware
corporation.
"NEXTEL COLLATERAL" shall mean the "Collateral," as that term is
defined in the Nextel Subordinated Security Agreement.
"NEXTEL INTERCREDITOR AGREEMENT" shall mean that certain Intercreditor
and Subordination Agreement among Canadian Imperial Bank of Commerce, in its
capacity as collateral agent under the Existing Credit Agreement, Tower Parent
Corp., the Nextel Tenants (other than Nextel Partners), TAS and the Borrower,
dated as of April 20, 1999, a copy of which is attached hereto as EXHIBIT I.
"NEXTEL INTERCREDITOR NOTICE" shall mean a notice, in form and
substance reasonably satisfactory to the Administrative Agent, to be delivered
by the Borrower, TAS and the Administrative Agent pursuant to the terms of the
Nextel Intercreditor Agreement to the Nextel Tenants party thereto and to the
Senior Creditors (as defined therein) providing notice to such Persons that (a)
the Existing Credit Agreement has been refinanced by this Agreement, (b) the
Administrative Agent and the other Credit Parties shall be considered "Senior
Creditors" for all purposes under the Nextel Intercreditor Agreement, and (c)
all references to the "Senior Credit Documents" in the Nextel Intercreditor
Agreement shall be deemed to refer to this Agreement and the other Loan
Documents.
"NEXTEL MASTER SITE LEASE AGREEMENT" shall mean that certain Master
Site Lease Agreement, dated as of April 20, 1999, among the Nextel Tenants
(other than Nextel Partners) and TAS.
"NEXTEL PARTNERS" shall mean Nextel Partners Operating Corp., a
Delaware corporation.
"NEXTEL PARTNERS MASTER SITE LEASE AGREEMENT" shall mean that certain
Master Site Lease Agreement dated as of January 4, 2000, among Nextel Partners,
TAS, the Borrower and the Landlord Parties (as defined therein).
19
"NEXTEL RELATED PARTIES" shall mean, collectively, Nextel, the Nextel
Tenants and their respective Subsidiaries.
"NEXTEL SUBORDINATED LIEN" shall mean that certain Lien granted by TAS
in favor of Tower Parent Corp., as secured party for itself and on behalf of
other beneficiaries thereof, on the Nextel Collateral pursuant to the Nextel
Subordinated Security Agreement, which Lien is subordinated pursuant to the
terms and conditions of the Nextel Intercreditor Agreement to the Lien in the
Nextel Collateral in favor of the Administrative Agent, for the benefit of the
Credit Parties.
"NEXTEL SUBORDINATED SECURITY AGREEMENT" shall mean that certain
Security and Subordination Agreement, dated as of April 20, 1999, between TAS,
as assignor, and Tower Parent Corp., as secured party for itself and on behalf
of other beneficiaries thereof.
"NEXTEL TENANTS" shall mean, collectively, Nextel of New York, Inc., a
Delaware corporation, Nextel Communications of the Mid-Atlantic, Inc., a
Delaware corporation, Nextel South Corp., a Georgia corporation, Nextel of
Texas, Inc., a Texas corporation, Nextel West Corp., a Delaware corporation, and
Nextel of California, Inc., a Delaware corporation, each d/b/a Nextel
Communications, Nextel Partners and each other Nextel Related Party that is a
tenant under the Nextel Master Site Lease Agreement or the Nextel Partners
Master Site Lease Agreement.
"NON-EXCLUDED TAXES" shall have the meaning set forth in SECTION
2.13(A).
"NON-REFINANCING INCREMENTAL FACILITY" shall have the meaning set forth
in SECTION 2.15(A).
"NOTES" shall mean, collectively, the Revolving Loan Notes, the Term
Loan Notes and, if applicable, the Incremental Facility Notes.
"NOTICE OF CONVERSION/CONTINUATION" shall mean a notice in
substantially the form of EXHIBIT J attached hereto.
"NOTICE OF INCREMENTAL FACILITY COMMITMENT" shall have the meaning set
forth in SECTION 2.15(B).
"OBLIGATIONS" shall mean (a) all payment and performance obligations of
every kind, nature and description of Holdco, any Intermediate Holdco, the
Borrower, its Restricted Subsidiaries, and any other obligors to the Credit
Parties (or their respective affiliates in the case of Permitted Hedge
Agreements), or any of them, under this Agreement and the other Loan Documents
(including, without limitation, any interest, fees, costs, expenses and other
charges accruing after any Insolvency Proceeding of Holdco, any Intermediate
Holdco, the Borrower or any of its Restricted Subsidiaries commences regardless
of whether such interest, fees, costs, expenses or other charges are deemed
allowed or recoverable in such Insolvency Proceeding), as they may be amended
from time to time, or as a result of making the Loans, whether such obligations
are direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, arising by operation of law or otherwise,
now existing or hereafter arising, and (b) the obligation to pay an amount equal
to the amount of any and all damage which the Credit Parties (or their
respective affiliates in the case of Permitted Hedge Agreements), or
20
any of them, may suffer by reason of a breach by Holdco, any Intermediate
Holdco, the Borrower, any of its Restricted Subsidiaries or any other obligor,
of any obligation, covenant or undertaking with respect to this Agreement or any
other Loan Document.
"ORIGINAL NEXTEL TOWERS" shall mean those Towers acquired from the
Nextel Related Parties on April 20, 1999, as to which any of the Nextel Tenants
is the anchor tenant and which are subject to the Nextel Subordinated Lien.
"OTHER OPERATIONS" shall mean all businesses (other than the Tower
Operations) of the Borrower and its Restricted Subsidiaries, including, without
limitation, to the extent not included in the Tower Operations, their Tower Site
acquisition and Tower Site management businesses.
"PARTICIPANTS" shall have the meaning assigned thereto in SECTION
13.5(B).
"PAYMENT DATE" shall mean the last day of any Eurodollar Advance
Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PENSION PLAN" shall mean any Plan that is subject to Title IV of ERISA
or Section 412 of the Code that is maintained, or contributed to, by the
Borrower or any of its Restricted Subsidiaries, or any of their ERISA
Affiliates, or under which the Borrower, any of its Restricted Subsidiaries or
any of their ERISA Affiliates may have liability.
"PERMITTED ACQUISITION DOCUMENTS" shall mean all documents executed by
Holdco, any Intermediate Holdco, the Borrower or any of its Restricted
Subsidiaries in connection with a Permitted Acquisition or a Permitted
Investment.
"PERMITTED ACQUISITIONS" shall mean Acquisitions made by the Borrower
or any of its Restricted Subsidiaries as and to the extent permitted under
SECTION 8.5.
"PERMITTED DEBT" shall mean Indebtedness permitted to be incurred and
to remain outstanding by Holdco, any Intermediate Holdco, the Borrower and its
Restricted Subsidiaries, pursuant to SECTION 8.1.
"PERMITTED DISPOSITIONS" shall mean the sale or other disposition of
assets by the Borrower or any of its Restricted Subsidiaries as and to the
extent permitted under SECTION 8.5.
"PERMITTED HEDGE AGREEMENTS" shall mean all Interest Hedge Agreements
and Currency Hedge Agreements to the extent that the Indebtedness represented
thereby is permitted to be incurred by the Borrower under SECTION 8.1.
"PERMITTED HOLDCO DEBT" shall mean, collectively, (a) debt securities
issued by SpectraSite, Inc. under the terms and conditions of the Holdco 8 1/4
Senior Notes Indenture (as in effect on the Agreement Date or as amended,
restated, supplemented or otherwise modified to the extent permitted under this
Agreement), and (b) so long as no Default or Event of Default then exists or
would be caused thereby, other unsecured debt securities issued by Holdco or any
Intermediate Holdco (including, without limitation, any debt securities
convertible into Equity Interests of Holdco or any Intermediate Holdco), upon
the Borrower's demonstration to the Lead
21
Arrangers that the Total Leverage Ratio (after giving pro forma effect to such
issuance) shall not exceed (i) 7.50 to 1.00 in the case of securities the Net
Cash Proceeds of which shall constitute either Acquisition Equity or Refinancing
Proceeds (and after giving further pro forma effect to the consummation of the
relevant Permitted Acquisition or the refinancing of the relevant Indebtedness,
as applicable), or (ii) 6.00 to 1.00 in the case of any other securities;
PROVIDED, HOWEVER, that in each case, the terms and conditions of such
securities shall either (A) provide, among other things, that (I) such
securities shall be issued on then-current market terms and conditions which
shall not include covenants any more restrictive, taken as a whole, on Holdco,
any Intermediate Holdco, the Borrower or any of its Subsidiaries than the
covenants contained in this Agreement and the other Loan Documents and (II) such
securities shall have no required cash redemptions (other than customary change
of control and asset sale redemption provisions) or principal maturities prior
to the day that is six (6) months after the Final Maturity Date, or (B) be
reasonably acceptable to the Lead Arrangers in all respects.
"PERMITTED INVESTMENTS" shall mean Investments described in and
permitted to be made under SECTION 8.2.
"PERMITTED LIENS" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent given to secure
the Obligations;
(b) (i) Liens on real estate for real estate taxes not yet
delinquent and (ii) Liens for taxes, assessments, judgments, governmental
charges or levies or claims not yet delinquent or the non-payment of which is
being diligently contested in good faith by appropriate proceedings and for
which reserves in conformity with GAAP have been set aside on such Person's
books, but only so long as no foreclosure, distraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of landlords, carriers, warehousemen, mechanics,
laborers, vendors (solely to the extent arising by operation of law) and
materialmen and other statutory Liens incurred in the ordinary course of
business for sums that are not more than sixty (60) days delinquent in
accordance with their terms or that are being diligently contested in good
faith, if reserves or appropriate provisions shall have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance or other social
security programs;
(e) Easements, rights-of-way, restrictions, survey exceptions,
zoning, land use and environmental restrictions, and other similar encumbrances
on the use of real property which do not materially interfere with the ordinary
conduct of the business of such Person or materially detract from the utility or
value of such real property, or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not incurred in
connection with Indebtedness or other extensions of credit and which do not in
the aggregate materially detract from the value of such properties or materially
impair their use in the operation of the business of such Person;
(f) the Nextel Subordinated Lien;
22
(g) Liens securing conditional sale, rental or purchase money
obligations permitted to be incurred pursuant to SECTION 8.1(I), but only in the
property that is the subject of such obligation;
(h) Liens granted to secure the performance of letters of credit,
bids, tenders, contracts, leases, public or statutory obligations, surety,
customs, appeal and performance bonds and other similar obligations incurred in
the ordinary course of business and not incurred in connection with the
borrowing of money;
(i) leasehold and license rights and interests granted to third
parties in respect of the Tower Assets;
(j) Liens in favor of the Borrower or any Restricted Subsidiary
(other than any Foreign Restricted Subsidiary), and Liens of any Foreign
Restricted Subsidiary in favor of any other Foreign Restricted Subsidiary;
(k) any interest in or title of a lessor to any property subject
to a Capitalized Lease Obligation permitted to be incurred pursuant to SECTION
8.1(B);
(l) normal provisions in agreements and leases that restrict the
assignment of such agreement or lease;
(m) negative pledges and other agreements not to create Liens
contained in any Permitted Debt;
(n) Liens on Tower Sites leased by the Borrower or any of its
Restricted Subsidiaries granted by the fee owner thereof;
(o) rights of first refusal, options and related rights set forth
in any Tower Site Lease Agreement or Tower Space Lease Agreement;
(p) in the case of Holdco and any Intermediate Holdco, Liens
granted by Holdco or any Intermediate Holdco, as applicable, on the Equity
Interests owned by Holdco or any Intermediate Holdco, as applicable, in any of
its Subsidiaries (other than the Borrower and its Subsidiaries);
(q) normal and customary rights of set-off upon deposits of cash
in favor of banks and other depository institutions;
(r) Liens attaching to xxxx xxxxxxx money deposits made in
connection with any letter of intent or purchase agreement entered into in
connection with a Permitted Acquisition;
(s) judgment Liens not giving rise to an Event of Default;
and
(t) Liens on the property or assets of a Person that becomes
a Restricted Subsidiary, or on any property or assets of another Person
acquired by the Borrower or any Restricted Subsidiary, in each case after the
Agreement Date, provided that (i) such Liens existed at the time such Person
became a Restricted Subsidiary or at the time such property or assets were
acquired, as applicable, and were not created, incurred or assumed in
anticipation of such
23
acquisition, (ii) any such Lien of a Person that becomes a Restricted Subsidiary
is not expanded to cover any property or assets of such Person acquired after
the time such Person became a Restricted Subsidiary (other than proceeds of the
existing collateral in accordance with the instrument creating such Lien), (iii)
any such Lien does not extend to any property or assets owned by the Borrower or
any of the other Restricted Subsidiaries or any other property or assets of the
Restricted Subsidiary acquiring the property or assets subject to such Lien, and
(iv) the aggregate fair market value of property and assets subject to all such
Liens shall not at any time exceed $10,000,000 during the term of this
Agreement.
"PERSON" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"PLAN" shall mean, with respect to any Person, an employee benefit plan
within the meaning of Section 3(3) of ERISA sponsored or maintained by or
contributed to by such Person for the benefit of employees of such Person, but
excluding any Multiemployer Plan.
"PRIME RATE" shall mean, at any time, the rate of interest quoted by
the Administrative Agent as its "prime rate" or "base rate" for Dollars in the
United States of America. The Prime Rate is not necessarily the lowest rate of
interest charged to borrowers of the Administrative Agent or its Affiliates.
"PROJECTIONS" shall have the meaning set forth in SECTION 4.1(E).
"PROPERTY" shall mean any real property or personal property, plant,
building, facility, structure, underground storage tank or unit, equipment,
inventory or other asset owned, leased or operated by Borrower or any of its
Restricted Subsidiaries (including, without limitation, any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
"PURCHASE PRICE" shall mean, with respect to each Permitted Acquisition
and each Permitted Disposition, the total consideration payable in connection
with such Permitted Acquisition or Permitted Disposition, as the case may be,
whether payable in cash, securities, by a note or other property, or by the
assumption of Indebtedness (including, without limitation, all forms of deferred
compensation, such as non-compete, consulting and similar agreements).
"REFINANCING INCREMENTAL FACILITY" shall have the meaning set forth in
SECTION 2.15(A).
"REFINANCING PROCEEDS" shall mean the amount of any Net Cash Proceeds
received by Holdco or any Intermediate Holdco in connection with the issuance of
Permitted Holdco Debt that is used by Holdco, any Intermediate Holdco, the
Borrower or any of its Restricted Subsidiaries to refinance any outstanding
Indebtedness of such Person to the extent such refinancing is permitted under
SECTION 8.1(H).
"REGISTER" shall have the meaning assigned thereto in SECTION 13.5(D).
"REPORTABLE EVENT" shall have the meaning set forth in Section 4043 of
ERISA, other than an event for which the reporting requirement has been waived
by regulations promulgated under such Section.
24
"REQUEST FOR ADVANCE" shall mean a certificate designated as a "Request
for Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance hereunder, which shall be in substantially the form of EXHIBIT K
attached hereto and shall, among other things, (a) specify the date of the
Advance, which shall be a Business Day, the amount of the Advance, the type of
Advance, and, with respect to a Eurodollar Advance, the Eurodollar Advance
Period selected by the Borrower, (b) state that there shall not exist, on the
date of the requested Advance both before and after giving effect thereto, any
Default or Event of Default, and (c) the use of the proceeds of the Advance
being requested.
"REQUEST FOR ISSUANCE OF LETTER OF CREDIT" shall mean any certificate
signed by an Authorized Signatory of the Borrower, which certificate will be
denominated a "Request for Issuance of Letter of Credit" and shall be in
substantially the form attached hereto as EXHIBIT L, and shall, among other
things, (a) specify the beneficiary of the proposed Letter of Credit, the
purpose of the Letter of Credit, the proposed date of issuance of the Letter of
Credit, which shall be a Business Day, and the documents which must be presented
to draw under such Letter of Credit (including, without limitation, any
documents which the Issuing Bank may require), (b) include, as an attachment, a
Letter of Credit Application, and (c) state that there shall not exist, on the
date of the request and after giving effect to the issuance of the Letter of
Credit, any Default or Event of Default hereunder.
"RESTRICTED PAYMENT" shall mean (a) any direct or indirect
distribution, dividend, redemption or other payment to any Person on account of
any Equity Interests or other securities of the Borrower or any of its
Restricted Subsidiaries; (b) any payment of principal of or interest on any
Indebtedness of any of the Borrower or any of its Restricted Subsidiaries in
favor of any Affiliate other than pursuant to this Agreement or the other Loan
Documents; or (c) any payment under any management or consulting agreement or
other similar agreement or arrangement with an Affiliate of the Borrower not
entered into in the ordinary course of business.
"RESTRICTED PURCHASE" shall mean any payment on account of the
purchase, redemption or other acquisition or retirement of any Equity Interests
or other securities of the Borrower or any of its Restricted Subsidiaries,
including, without limitation, any warrants or other rights or options to
acquire Equity Interests of the Borrower or any of its Restricted Subsidiaries.
"RESTRICTED SUBSIDIARIES" shall mean (a) the direct or indirect
wholly-owned Subsidiaries of the Borrower organized under the laws of the United
States or any state thereof or the District of Columbia, to the extent not
designated by the Borrower as Unrestricted Subsidiaries in accordance with the
terms and conditions of this Agreement, and (b) the Foreign Restricted
Subsidiaries.
"REVOLVING LOAN COMMITMENTS" shall mean the several obligations of the
Lenders having a Revolving Loan Commitment to advance to the Borrower the sum of
up to $200,000,000 at any one time outstanding in accordance with their
respective Commitment Ratios for Revolving Loans, and as reduced (or increased
by the issuance of an Incremental Facility Commitment) from time to time, all
pursuant to the terms hereof; and "REVOLVING LOAN COMMITMENT" shall mean the
individual commitment of each such Lender to advance Revolving Loans hereunder.
25
"REVOLVING LOAN MATURITY DATE" shall mean November 19, 2011, or such
earlier date as payment of the Revolving Loans shall be due (whether by
acceleration, reduction of the Revolving Loan Commitments to zero or otherwise).
"REVOLVING LOAN NOTES" shall mean those certain revolving promissory
notes issued by the Borrower to each of the Lenders issuing a Revolving Loan
Commitment that requests a promissory note in accordance with each such Lender's
Commitment Ratio for Revolving Loans, each one substantially in the form of
EXHIBIT M attached hereto, and any extensions, modifications, renewals or
replacements of or amendments to any of the foregoing.
"REVOLVING LOANS" shall mean, collectively, the amount advanced by the
Lenders having Revolving Loan Commitments to the Borrower under the Revolving
Loan Commitments, not to exceed, in the aggregate, the amount of the Revolving
Loan Commitments.
"S&P" shall mean Standard and Poor's Rating Group.
"SALES TRANSACTION" shall have the meaning assigned thereto in the
definition of "Net Cash Proceeds".
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"SECURITY DOCUMENTS" shall mean, without limitation, the Borrower
Security Agreement, the Borrower Pledge Agreement, the Intellectual Property
Security Agreement, the Subsidiary Pledge Agreement, the Subsidiary Security
Agreement, the Holdco Pledge Agreement, and any other agreement or instrument
providing Collateral for the Obligations, whether now or hereafter in existence,
and any filings, instruments, agreements, and documents related thereto or to
this Agreement.
"SECURITY INTEREST" shall mean all Liens in favor of the Administrative
Agent created hereunder or under any of the Security Documents.
"SHARED TENANT INFRASTRUCTURE SITES" shall mean those sites constructed
within specific areas, including, but not limited to, office buildings, casinos,
stadiums, shopping malls, airports and tunnels, and capable of providing
licensed or unlicensed wireless services within such specific areas.
"SPC" shall have the meaning assigned thereto in SECTION 13.5(K).
"SPECIFIED HOLDCO DISTRIBUTIONS" shall mean, collectively, (a)
Restricted Payments to, or Restricted Purchases from, Holdco or any Intermediate
Holdco funded by Excess Cash Flow determined for the period from October 1,
2004, through the fiscal quarter end immediately preceding the date of such
Restricted Payment to the extent such Excess Cash Flow shall not be used for any
other purpose, (b) Restricted Payments to, or Restricted Purchases from, Holdco
or any Intermediate Holdco made from Cash on Hand (Agreement Date) to the extent
not used for any other purpose, (c) Restricted Payments to, or Restricted
Purchases from, Holdco or any Intermediate Holdco funded by the proceeds of the
Loans to prepay, redeem or otherwise retire or repurchase all or any portion of
any Permitted Holdco Debt (including any premiums and accrued interest
associated therewith), and (d) at any time that the Total Leverage Ratio is less
than or equal to 6.00 to 1.00, Restricted Payments to, or Restricted Purchases
from, Holdco
26
or any Intermediate Holdco to repurchase shares of its common Equity Interests
or pay dividends to its shareholders.
"SUBSIDIARY" shall mean, as applied to any Person, any corporation of
which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect its board of
directors, regardless of the existence at the time of a right of the holders of
any class or classes of securities of such corporation to exercise such voting
power by reason of the happening of any contingency, or any partnership or other
entity of which more than fifty percent (50%) of the outstanding partnership or
other equity interests, is at the time owned directly or indirectly by such
Person, or by one or more Subsidiaries of such Person, or by such Person and one
or more Subsidiaries of such Person.
"SUBSIDIARY GUARANTORS" shall mean, collectively, each of the
Restricted Subsidiaries (other than any Foreign Restricted Subsidiaries).
"SUBSIDIARY GUARANTY" shall mean that certain Subsidiary Guaranty
Agreement issued by each Subsidiary Guarantor in favor of the Administrative
Agent, for the benefit of the Credit Parties, dated as of the Agreement Date, in
substantially the form of EXHIBIT N attached hereto, and any similar guaranty or
any guaranty supplement delivered pursuant to SECTION 6.15.
"SUBSIDIARY PLEDGE AGREEMENT" shall mean that certain Subsidiary Pledge
Agreement among each Subsidiary Guarantor holding any Equity Interests in any
Restricted Subsidiaries and the Administrative Agent, for the benefit of the
Credit Parties, dated as of the Agreement Date, in substantially the form of
EXHIBIT O attached hereto, and any similar pledge agreement or any pledge
agreement supplement delivered pursuant to SECTION 6.15.
"SUBSIDIARY SECURITY AGREEMENT" shall mean that certain Subsidiary
Security Agreement among the Subsidiary Guarantors and the Administrative Agent,
for the benefit of the Credit Parties, dated as of the Agreement Date, in
substantially the form of EXHIBIT P attached hereto, and any similar security
agreement or any security agreement supplement delivered pursuant to SECTION
6.15.
"SUPER-HOLDCO" shall mean any Person that owns directly 100% of the
Equity Interests of any Intermediate Holdco.
"TAS" shall mean Tower Asset Sub, Inc., a Delaware corporation and a
wholly owned Restricted Subsidiary of the Borrower.
"TAXES" shall have the meaning set forth in SECTION 2.9(B).
"TERM A LOAN COMMITMENTS" shall mean the several obligations of the
Lenders having a Term A Loan Commitment to advance to the Borrower an aggregate
amount of up to $300,000,000 during the Term A Loan Funding Period in accordance
with their respective Commitment Ratios for Term A Loans, and as reduced (or
increased by the issuance of an Incremental Facility Commitment) from time to
time, all pursuant to the terms hereof; and "TERM A LOAN COMMITMENT" shall mean
the individual commitment of each such Lender to advance Term A Loans hereunder.
27
"TERM A LOAN FUNDING PERIOD" shall mean the period from and including
the Agreement Date to the first anniversary of the Agreement Date (or such
earlier date as the Borrower may elect to terminate the Term A Loan
Commitments).
"TERM A LOAN MATURITY DATE" shall mean November 19, 2011, or such
earlier date as payment of the Term A Loans shall be due (whether by
acceleration or otherwise).
"TERM A LOAN NOTES shall mean those certain term notes issued by the
Borrower to each of the Lenders issuing a Term A Loan Commitment that requests a
promissory note in accordance with each such Lender's Commitment Ratio for Term
A Loans, each one substantially in the form of EXHIBIT Q attached hereto, and
any extensions, modifications, renewals or replacements of or amendments to any
of the foregoing.
"TERM A LOANS" shall mean, collectively, the amounts advanced by the
Lenders having Term A Loan Commitments to the Borrower under the Term A Loan
Commitments, not to exceed, in the aggregate, the amount of the Term A Loan
Commitments.
"TERM B LOAN COMMITMENTS" shall mean the several obligations of the
Lenders having a Term B Loan Commitment to advance to the Borrower an aggregate
amount of $400,000,000 on the Agreement Date in accordance with their respective
Commitment Ratios for Term B Loans, and as reduced (or increased by the issuance
of an Incremental Facility Commitment) from time to time, all pursuant to the
terms hereof; and "TERM B LOAN COMMITMENT" shall mean the individual commitment
of each such Lender to advance Term B Loans hereunder.
"TERM B LOAN MATURITY DATE" shall mean May 19, 2012, or such earlier
date as payment of the Term B Loans shall be due (whether by acceleration or
otherwise).
"TERM B LOAN NOTES" shall mean those certain term notes issued by the
Borrower to each of the Lenders issuing a Term B Loan Commitment that requests a
promissory note in accordance with each such Lender's Commitment Ratio for Term
B Loans, each one substantially in the form of EXHIBIT R attached hereto, and
any extensions, modifications, renewals or replacements of or amendments to any
of the foregoing.
"TERM B LOANS" shall mean, collectively, the amount advanced by the
Lenders having Term B Loan Commitments to the Borrower under the Term B Loan
Commitments, not to exceed, in the aggregate, the amount of the Term B Loan
Commitments.
"TERM LOANS" shall mean, collectively, the Term A Loans, the Term B
Loans and, to the extent then outstanding, any Incremental Facility Loans which
are term loans.
"TERM LOAN NOTES" shall mean the Term A Loan Notes and the Term B Loan
Notes.
"TOTAL DEBT" shall mean, as of any calculation date, the sum of (a)
Borrower Debt outstanding as of such date, plus (b) all Funded Debt of Holdco
and any Intermediate Holdco, on a consolidated basis, outstanding as of such
date, in each case without duplication.
"TOTAL LEVERAGE RATIO" shall mean, on any calculation date, the ratio
of (a) Total Debt on such date to (b) the sum of (i) Annualized EBITDA as of
such date and (ii) Holdco
28
EBITDA determined for Holdco and its Subsidiaries (other than the Borrower and
its Subsidiaries) for the most recent fiscal quarter for which financial
statements are then available times four (4).
"TOWER" shall mean any communications tower owned, leased or managed by
the Borrower or any of its Restricted Subsidiaries.
"TOWER ASSETS" shall mean assets and businesses constituting Tower
Sites, Shared Tenant Infrastructure Sites, Towers or "build to suit" businesses
owned by the Borrower or any of its Restricted Subsidiaries, and any and all
assets relating thereto (including, without limitation, tower structures,
concrete pads, tower lighting and fences, interests in real property related
thereto, third party tenant leases and permits and documents related thereto).
"TOWER OPERATIONS" shall mean the ownership, leasing, management,
shared tenant infrastructure, "build-out" and construction businesses of the
Borrower and its Restricted Subsidiaries relating to the Towers.
"TOWER PARENT CORP." shall mean Tower Parent Corp., a Delaware
corporation.
"TOWER SITE" shall mean each parcel of real property, owned, leased or
managed by the Borrower or any of its Restricted Subsidiaries pursuant to a
Tower Site Lease Agreement or a Tower Site Management Agreement, on which the
Borrower or any of its Restricted Subsidiaries owns, operates or maintains a
Tower.
"TOWER SITE LEASE AGREEMENT" shall mean each lease or sublease for real
property to which the Borrower or any of its Restricted Subsidiaries is a party
pursuant to which the Borrower or such Restricted Subsidiary leases or subleases
a Tower Site.
"TOWER SITE MANAGEMENT AGREEMENT" shall mean any agreement pursuant to
which the Borrower or any of its Restricted Subsidiaries has the right to
substantially control Tower Assets and the revenues derived from the rental or
use thereof.
"TOWER SPACE LEASE AGREEMENT" shall mean any lease or sub-lease
agreement to which the Borrower or any of its Restricted Subsidiaries is a party
pursuant to which the Borrower or such Restricted Subsidiary leases or
sub-leases platform space on Towers and space to a third party on other
communications sites and the right to use and/or benefit from related
improvements.
"TRANSFEREE" shall have the meaning assigned thereto in SECTION
13.5(E).
"UNFUNDED COMMITMENT PERCENTAGE" shall mean, as of the end of any
quarter, (a) with respect to the Revolving Loan Commitments, the percentage
equivalent of a fraction, the numerator of which is equal to (i) the result of
the average daily amount during such quarter, without duplication, of (A) the
Revolving Loan Commitments, less (B) the aggregate principal amount of Revolving
Loans outstanding, less (C) the L/C Obligations outstanding, and the denominator
of which is equal to (ii) the average daily amount during such quarter of the
Revolving Loan Commitments; (b) with respect to the Term A Loan Commitments
during the Term A Loan Funding Period, the percentage equivalent of a fraction,
the numerator of which is equal to (i) the result of the average daily amount
during such quarter, without duplication, of (A) the Term A Loan Commitments,
less (B) the aggregate principal amount of Term A Loans
29
outstanding, and the denominator of which is equal to (ii) the average daily
amount during such quarter of the Term A Loan Commitments, or if the Term A Loan
Commitments are fully funded, zero; and (c) with respect to the Incremental
Facility Commitments issued under any Incremental Facility during any funding
period applicable thereto, the percentage equivalent of a fraction, the
numerator of which is equal to (i) the result of the average daily amount during
such quarter, without duplication, of (A) such Incremental Facility Commitments,
less (B) the aggregate principal amount of Incremental Facility Loans
outstanding under such Incremental Facility, and the denominator of which is
equal to (ii) the average daily amount during such quarter of such Incremental
Facility Commitments, or if such Incremental Facility Commitments are fully
funded, zero.
"UNFUNDED COMMITMENTS" shall mean, collectively, the Unfunded Revolving
Loan Commitments, the Unfunded Term A Loan Commitments, and the undrawn amount
of all Incremental Facility Commitments.
"UNFUNDED REVOLVING LOAN COMMITMENTS" shall mean, as of any date of
determination, the Revolving Loan Commitments, less the aggregate principal
amount of Revolving Loans outstanding, less the L/C Obligations outstanding.
"UNFUNDED TERM A LOAN COMMITMENTS" shall mean, as of any date of
determination during the Term A Loan Funding Period, the Term A Loan
Commitments, less the aggregate principal amount of Term A Loans outstanding.
"UNIFORM CUSTOMS" shall mean the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended, supplemented or otherwise
modified from time to time and, if applicable, the rules of the "International
Standby Practices 1998" (ISP98), as the same may be revised from time to time.
"UNRESTRICTED SUBSIDIARIES" shall mean the direct or indirect
Subsidiaries of the Borrower (other than any Restricted Subsidiaries) which have
been designated in writing by the Borrower as "Unrestricted Subsidiaries"
pursuant to SECTION 6.17(B).
"UNRESTRICTED SUBSIDIARY INVESTMENT" shall mean the aggregate amount of
any Investment made by the Borrower and its Restricted Subsidiaries in
Unrestricted Subsidiaries, which shall include, without limitation, the
aggregate net amount of Investments made in any Restricted Subsidiary that is
re-designated as an Unrestricted Subsidiary during the period from and after the
Agreement Date to the date of such re-designation.
"VOTING STOCK" shall mean all classes of Equity Interests of a Person
then outstanding and normally entitled, without regard to the occurrence of any
contingency, to vote in the election of directors, managers, or trustee thereof.
Each definition of an agreement in this Article 1 shall include such
instrument or agreement as amended, restated, supplemented or otherwise modified
from time to time (except to the extent otherwise explicitly set forth herein),
and except where the context otherwise requires, definitions imparting the
singular shall include the plural and vice versa. Except where otherwise
specifically restricted, reference to a Person includes that party and its
successors and assigns. An Event of Default shall "exist", "continue" or be
"continuing" until such Event of
30
Default has been waived in writing in accordance with SECTION 13.12. All terms
used herein which are defined in Article 9 of the Uniform Commercial Code in
effect in the State of New York on the date hereof and which are not otherwise
defined herein shall have the same meanings herein as set forth therein. All
accounting terms used herein without definition shall be used as defined under
GAAP. In the event that any Accounting Change shall occur and such change shall
result in a change in the method of calculation of the Financial Covenants, or
any other financial standards or terms in this Agreement, the Borrower and the
Lead Arrangers agree to enter into negotiations in order to amend such
provisions so as to equitably reflect such Accounting Change on terms reasonably
acceptable to all parties. Until such time as such an amendment to this
Agreement shall have been executed and delivered by the Borrower, the
Administrative Agent and Majority Lenders, the Financial Covenants and all other
financial standards and terms in this Agreement shall continue to be calculated
or construed as if such Accounting Change had not occurred. All financial
calculations hereunder shall, unless otherwise stated, be determined for the
Borrower on a consolidated basis with its Restricted Subsidiaries.
ARTICLE 2 - Loans
Section 2.1 THE LOANS. Subject to the terms and conditions of, and
in reliance upon the representations and warranties made in, this Agreement and
the other Loan Documents, the Lenders have extended and agree, severally in
accordance with their respective Commitment Ratios and not jointly, to make
Loans to the Borrower as set forth below.
(a) REVOLVING LOANS. The Lenders that have issued Revolving Loan
Commitments agree, severally in accordance with their respective Commitment
Ratios for the Revolving Loans and not jointly, upon the terms and subject to
the conditions of this Agreement, to lend and re-lend to the Borrower, on and
after the Agreement Date, but prior to the Revolving Loan Maturity Date, amounts
which, in the aggregate, do not exceed at any time the amount equal to the
result of (i) the Revolving Loan Commitments, less (ii) the aggregate amount of
L/C Obligations then outstanding. Subject to the terms and conditions hereof and
prior to the Revolving Loan Maturity Date, Advances under the Revolving Loan
Commitment may be repaid and reborrowed from time to time on a revolving basis
or may be continued or converted pursuant to a Notice of Conversion/Continuation
as provided in SECTION 2.2.
(b) TERM A LOANS. The Lenders that have issued Term A Loan
Commitments, severally in accordance with their respective Commitment Ratios for
the Term A Loans and not jointly, upon the terms and subject to the conditions
of this Agreement, agree to lend to the Borrower, on and after the Agreement
Date and on or prior to the expiration of the Term A Loan Funding Period, in
multiple Advances, an aggregate amount not to exceed the Term A Loan
Commitments. Advances under the Term A Loan Commitments may be continued or
converted pursuant to a Notice of Conversion/Continuation as provided in SECTION
2.2; PROVIDED, HOWEVER, that except as provided in SECTION 2.15, there shall be
no increase in the aggregate principal amount outstanding under the Term A Loan
Commitments at any time after the expiration of the Term A Loan Funding Period.
Amounts repaid under the Term A Loan Commitments may not be reborrowed.
(c) TERM B LOANS. The Lenders that have issued Term B Loan
Commitments, severally in accordance with their respective Commitment Ratios for
the Term B Loans and not jointly, upon the terms and subject to the conditions
of this Agreement, agree to
31
lend to the Borrower on the Agreement Date an aggregate amount equal to the Term
B Loan Commitments. After the Agreement Date, Advances under the Term B Loan
Commitments may be continued or converted pursuant to a Notice of
Conversion/Continuation as provided in SECTION 2.2; PROVIDED, HOWEVER, that
except as provided in SECTION 2.15, there shall be no increase in the aggregate
principal amount of the Term B Loans outstanding at any time after the Agreement
Date. Amounts repaid under the Term B Loan Commitments may not be reborrowed.
(d) LETTERS OF CREDIT. Each Issuing Bank agrees, upon the terms
and subject to the conditions of this Agreement, to issue from time to time, on
and after the Agreement Date, but prior to the Revolving Loan Maturity Date, for
the account of the Borrower, Letters of Credit to such beneficiaries as shall be
designated in writing by the Borrower to such Issuing Bank, up to the limit of
the Letter of Credit Committed Amount.
Section 2.2 MANNER OF BORROWING AND DISBURSEMENT.
(a) CHOICE OF INTEREST RATE, ETC. Any Advance (i) under the
Revolving Loan Commitments (except with respect to Advances in reimbursement of
amounts advanced to beneficiaries under Letters of Credit, which Advances shall
be Base Rate Advances initially) shall, at the option of the Borrower, be made
as a Base Rate Advance or a Eurodollar Advance, (ii) under the Term A Loan
Commitments shall, at the option of the Borrower, be made as a Base Rate Advance
or a Eurodollar Advance, (iii) under the Term B Loan Commitments shall, at the
option of the Borrower, be made as a Base Rate Advance or a Eurodollar Advance,
and (iv) under any Incremental Facility Commitment, shall, at the option of the
Borrower, be made as a Base Rate Advance or a Eurodollar Advance; PROVIDED,
HOWEVER, that (A) if the Borrower fails to give the Administrative Agent written
notice specifying whether a Eurodollar Advance is to be repaid, continued or
converted on a Payment Date, such Eurodollar Advance shall be converted to a
Base Rate Advance on such Payment Date, and (B) the Borrower may not select or
continue a Eurodollar Advance if, at the time of such selection, a Default or
Event of Default has occurred and is continuing. All Advances of the Loans made
on the Agreement Date shall bear interest as Base Rate Advances. Any notice
given to the Administrative Agent in connection with a requested Advance
hereunder shall be given to the Administrative Agent prior to 10:00 a.m. (New
York time) in order for such Business Day to count toward the minimum number of
Business Days required.
(b) BASE RATE ADVANCES.
(i) INITIAL AND SUBSEQUENT ADVANCES. The Borrower shall
give the Administrative Agent in the case of Base Rate Advances, irrevocable
prior written notice not later than 10:00 a.m. (New York time) on the date of
such Advance in the form of a Request for Advance, or telephonic notice followed
immediately by a Request for Advance; PROVIDED, HOWEVER, that the Borrower's
failure to confirm any telephonic notice with a Request for Advance shall not
invalidate any notice so given; and PROVIDED, FURTHER, that no such notice shall
be required in connection with the making of a Base Rate Advance to repay a draw
under a Letter of Credit.
(ii) REPAYMENTS AND CONVERSIONS. The Borrower may (A)
upon at least one (1) Business Days' irrevocable prior written notice to the
Administrative Agent, repay or prepay a Base Rate Advance, or (B) upon at least
three (3) Business Days'
32
irrevocable prior written notice to the Administrative Agent in the form of a
Notice of Conversion/Continuation, convert all or a portion of the principal
amount thereof to one or more Eurodollar Advances. On the date indicated by the
Borrower, such Base Rate Advance shall be so repaid or converted.
(iii) MISCELLANEOUS. Notwithstanding any term or provision
of this Agreement which may be construed to the contrary, each Base Rate Advance
(except any Base Rate Advance in reimbursement of amounts advanced to
beneficiaries under Letters of Credit) shall be in a principal amount of at
least $1,000,000 and in integral multiples of $100,000 in excess thereof, or the
remaining amount of the Revolving Loan Commitments or the Term A Loan
Commitments, as the case may be.
(c) EURODOLLAR ADVANCES.
(i) INITIAL AND SUBSEQUENT ADVANCES. The Borrower shall
give the Administrative Agent in the case of Eurodollar Advances irrevocable
prior written notice in the form of a Request for Advance, or telephonic notice
followed immediately by a Request for Advance, in any case not later than 11:00
a.m. (New York time) on the date that is three (3) Business Days prior to the
date of such Advance; PROVIDED, HOWEVER, that the Borrower's failure to confirm
any telephonic notice with a Request for Advance shall not invalidate any notice
so given. The Borrower shall promptly notify the Administrative Agent by
telephone or telecopy, and shall immediately confirm any such telephonic notice
in writing, of its selection of a Eurodollar Advance and Eurodollar Advance
Period for such Advance; PROVIDED, HOWEVER, that the Borrower's failure to
confirm any such telephonic notice in writing shall not invalidate any notice so
given.
(ii) REPAYMENTS, CONTINUATIONS AND CONVERSIONS. At least
three (3) Business Days prior to each Payment Date for a Eurodollar Advance, the
Borrower shall give the Administrative Agent written notice in the form of a
Notice of Conversion/Continuation specifying whether all or a portion of such
Eurodollar Advance outstanding on such Payment Date (A) is to be continued in
whole or in part as a new Eurodollar Advance, in which case such notice shall
also specify the Eurodollar Advance Period for such new Eurodollar Advance, (B)
is to be converted in whole or in part to a Base Rate Advance, or (C) is to be
repaid and not continued or converted. Upon such Payment Date, such Eurodollar
Advance will, subject to the provisions hereof, be so repaid, continued or
converted, as applicable. If the Borrower fails to give the Administrative Agent
written notice specifying whether a Eurodollar Advance is to be repaid,
continued or converted on a Payment Date, such Eurodollar Advance shall be
converted to a Base Rate Advance on such Payment Date.
(iii) MISCELLANEOUS. Notwithstanding any term or provision
of this Agreement which may be construed to the contrary, each Eurodollar
Advance shall be in a principal amount of at least $2,000,000 and in integral
multiples of $100,000 in excess thereof, and at no time shall the aggregate
number of all Eurodollar Advances outstanding exceed twenty (20).
(d) NOTIFICATION OF LENDERS. Upon receipt of a Request for Advance
(or telephonic notice from the Borrower pursuant to clause (c)(i) above) or a
notice from the Borrower with respect to any outstanding Advance prior to the
Payment Date for such Advance, or a request by the Issuing Bank for
reimbursement under SECTION 2.14, the Administrative Agent
33
shall promptly notify each Lender by telephone or telecopy of the contents
thereof and the amount of such Lender's portion of the Advance. Each Lender
shall, not later than 1:00 p.m. (New York time) on the date of borrowing
specified in such notice, make available to the Administrative Agent at the
Administrative Agent's Office, or at such account as the Administrative Agent
shall designate, the amount of its portion of any Advance which represents an
additional borrowing hereunder in immediately available funds.
(e) DISBURSEMENT.
(i) Prior to, with respect to Base Rate Advances, 3:00
p.m. (New York time), and, with respect to Eurodollar Advances, 2:00 p.m. (New
York time), in each case on the date of an Advance hereunder, the Administrative
Agent shall, subject to the satisfaction of any applicable conditions set forth
in Article 4 hereof, disburse the amounts made available to it by the Lenders in
immediately available funds by (A) transferring the amounts so made available by
wire transfer pursuant to the Borrower's instructions, (B) in the case of an
Advance representing the reimbursement of the Issuing Bank for a draw under a
Letter of Credit, transferring such amount to the Issuing Bank, or (C) in the
absence of such instructions referred to in clause (A) above and so long as the
provisions of clause (B) above do not apply to the requested Advance, crediting
the amounts so made available to the account of the Borrower maintained with the
Administrative Agent.
(ii) Unless the Administrative Agent shall have received
notice from a Lender, prior to 1:00 p.m. (New York time) on the date of any
Advance that such Lender will not make available to the Administrative Agent
such Lender's ratable portion of such Advance, the Administrative Agent may
assume that such Lender, has made or will make such portion available to the
Administrative Agent on the date of such Advance and the Administrative Agent
may, in its sole discretion and in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent a
Lender does not make such ratable portion available to the Administrative Agent,
such Lender, agrees to repay to the Administrative Agent on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at the Federal Funds Rate.
(iii) If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's portion of the applicable Advance for purposes of this Agreement. If
such Lender does not repay such corresponding amount immediately upon the
Administrative Agent's demand therefor, the Administrative Agent shall notify
the Borrower, and the Borrower shall promptly pay such corresponding amount to
the Administrative Agent, together with interest thereon. The failure of any
Lender to fund its portion of any Advance shall not relieve any other Lender of
its obligation hereunder to fund its respective portion of the Advance on the
date of such borrowing, but no Lender shall be responsible for any such failure
of any other Lender.
(iv) In the event that, at any time when the Borrower is
not in Default, a Lender for any reason fails or refuses to fund its portion of
an Advance, then, until such time as such Lender has funded its portion of such
Advance, or all other Lenders have received payment in full (whether by
repayment or prepayment) of the principal and interest due in respect of such
Advance, such non-funding Lender shall not have the right (A) to vote regarding
any issue on which voting is required or advisable under this Agreement or any
other
34
Loan Document and, with respect to any such Lender, the amount of the Unfunded
Commitments and Loans, as applicable, held by such Lender shall not be counted
as outstanding for purposes of determining "Majority Lenders" hereunder, and (B)
to receive payments of principal, interest or fees from the Borrower in respect
of its unfunded portion of Advances. Notwithstanding the foregoing, within sixty
(60) days of the failure by any Lender to fund its portion of an Advance, so
long as no Default or Event of Default then exists, the Borrower may, in its
discretion, provide a replacement lender or lenders for such non-funding Lender,
which replacement lender or lenders will be subject to the approval of the Lead
Arrangers, which shall not be unreasonably withheld, and the Administrative
Agent, such Lender and the Borrower shall take all necessary actions to transfer
the rights, duties and obligations of such non-funding Lender to such
replacement lender or lenders within such sixty (60) day period (including,
without limitation, the payment in full of all Obligations hereunder due to the
non-funding Lender being replaced).
(f) AUTOMATIC PAYMENT. Unless payment is otherwise timely made
by the Borrower, the becoming due of any amount required to be paid under this
Agreement or any of the other Loan Documents as principal, accrued interest,
fees or other charges in respect of the Loans shall be deemed irrevocably to be
a Request for Advance on the due date of, and in an aggregate amount required to
pay, such principal, accrued interest, fees or other charges, and the proceeds
of an Advance under the Revolving Loan Commitment, made pursuant thereto may be
disbursed by way of direct payment of the relevant Obligation and shall bear
interest initially as a Base Rate Advance. The Administrative Agent and the
Lenders shall have no obligation to the Borrower to honor any such deemed
Request for Advance, but may do so in their sole discretion and without regard
to the existence of, and without being deemed to have waived, any Default or
Event of Default.
Section 2.3 INTEREST.
(a) ON BASE RATE ADVANCES. Interest on each Base Rate Advance
shall be computed on the basis of a year of 365/366 days for the actual number
of days elapsed and shall be payable quarterly in arrears on the last Business
Day of each calendar quarter. Interest on Base Rate Advances then outstanding
shall also be due and payable on the date of any repayment made under SECTIONS
2.5, 2.6 or 2.7 and on each applicable Maturity Date. Interest shall accrue and
be payable on each Base Rate Advance at the simple per annum interest rate equal
to the sum of (A) the Base Rate and (B) the Applicable Margin in effect from
time to time and as more fully set forth in SECTION 2.3(F).
(b) ON EURODOLLAR ADVANCES. Interest on each Eurodollar Rate
Advance shall be computed on the basis of a 360-day year for the actual number
of days elapsed and shall be payable in arrears (i) on the applicable Payment
Date for such Advance, and (ii) if the Eurodollar Advance Period for such
Eurodollar Advance exceeds three (3) months, on every three (3) month
anniversary of such Eurodollar Advance. Interest on Eurodollar Advances then
outstanding shall also be due and payable on the date of any repayment made
under SECTIONS 2.5, 2.6 or 2.7 and on each applicable Maturity Date. Interest
shall accrue and be payable on each Eurodollar Advance at a rate per annum equal
to the sum of (A) the Eurodollar Rate applicable to such Eurodollar Advance and
(B) the Applicable Margin in effect from time to time and as more fully set
forth in SECTION 2.3(F).
35
(c) INTEREST IF NO NOTICE OF SELECTION OF INTEREST RATE. If the
Borrower fails to give the Administrative Agent timely notice of the selection
of a Eurodollar Advance, or if the Administrative Agent is unable to timely
determine a Eurodollar Rate for any Advance, the Base Rate shall apply to such
Advance. If the Borrower fails to elect to continue any Eurodollar Advance then
outstanding prior to the Payment Date applicable thereto in accordance with the
provisions of SECTION 2.2, the Base Rate shall apply to such Advance commencing
on and after such Payment Date.
(d) INTEREST UPON DEFAULT. Immediately upon the occurrence of an
Event of Default under clause (b), (e) or (f) of SECTION 10.1, interest on the
Obligations shall accrue at the Default Rate applicable thereto from the date of
such Event of Default. Interest accruing at the Default Rate on the Obligations
shall be payable on demand and in any event on each applicable Maturity Date,
and shall accrue until the earliest to occur of (A) waiver of the applicable
Event of Default in accordance with SECTION 13.12 (or, in the case of an Event
of Default under SECTION 10.1(B), the payment of the Obligations then overdue),
(B) agreement by the Majority Lenders to rescind the charging of interest at the
Default Rate, or (C) payment in full of the Obligations. The Lenders shall not
be required to (x) accelerate the maturity of their Loans, (y) terminate their
Commitments, or (z) exercise any other rights or remedies available to them
under the Loan Documents in order to charge interest hereunder at the Default
Rate.
(e) COMPUTATION OF INTEREST. In computing interest on any Advance,
the date of making the Advance shall be included and the date of payment shall
be excluded; PROVIDED, HOWEVER, that if an Advance is repaid on the date that it
is made, one (1) day's interest shall be due with respect to such Advance.
(f) Applicable Margins for Base Rate Advances and Eurodollar
Advances.
(i) ADVANCES UNDER THE REVOLVING LOAN COMMITMENTS OR OF
THE TERM A LOANS. With respect to any Advance under the Revolving Loan
Commitments, or any Advance of the Term A Loans, the Applicable Margin shall be
(A) on and after the Agreement Date to and including the Adjustment Date, (x)
1.50% with respect to any Eurodollar Advance and (y) 0.50% with respect to any
Base Rate Advance, and (B) after the Adjustment Date, the interest rate margin
based upon the Borrower Leverage Ratio for the most recent fiscal quarter end,
effective as of the second (2nd) Business Day after the financial statements
referred to in SECTION 7.1 hereof are delivered by the Borrower to the
Administrative Agent for the fiscal quarter of the Borrower most recently ended,
expressed as a per annum rate of interest as follows:
THEN THE BASE THEN THE
RATE ADVANCE EURODOLLAR ADVANCE
APPLICABLE MARGIN APPLICABLE MARGIN
IF THE BORROWER LEVERAGE RATIO IS: SHALL BE: SHALL BE:
-----------------------------------------------------------------------------------------
Greater than 4.00 to 1.00 1.00% 2.00%
Greater than or equal 3.50 to 1.00 0.75% 1.75%
but less than or equal to 4.00 to
1.00
Greater than or equal to 3.00 to 1.00 0.50% 1.50%
but less than 3.50 to 1.00
Greater than or equal to 2.00 to 1.00 0.25% 1.25%
but less than 3.00 to 1.00
Less than 2.00 to 1.00 0.00% 1.00%
36
In the event that the Borrower fails to timely provide (I) the financial
statements referred to above in accordance with the terms of SECTION 7.1 or (II)
the Compliance Certificate referred to in SECTION 7.3, and without prejudice to
any additional rights under SECTION 2.3(D) or SECTION 10.2, no downward
adjustment of the Applicable Margin in effect for the preceding quarter shall
occur until the actual delivery of such statements, and from such failure and
until such delivery, the Applicable Margin shall be (x) 2.00% with respect to
each Eurodollar Advance, and (y) 1.00% with respect to each Base Rate Advance.
(ii) ADVANCES OF THE TERM B LOANS. With respect to any
Advance of the Term B Loans, the Applicable Margin shall be, (A) 1.50% per annum
with respect to any Eurodollar Advance and (B) 0.50% per annum with respect to
any Base Rate Advance.
(g) DETERMINATION OF DOLLAR EQUIVALENT AMOUNT. The Administrative
Agent will determine the Dollar Equivalent Amount with respect to (i) any
issuance of, or any amendment to, a Letter of Credit denominated in a currency
other than Dollars, as of the requested issuance date of such Letter of Credit,
(ii) any drawing under a Letter of Credit denominated in a currency other than
Dollars as of the date the Borrower is required pursuant to SECTION 2.14 to
reimburse the Issuing Bank, (iii) all outstanding L/C Obligations in respect of
Letters of Credit denominated in a currency other than Dollars, on any date on
which the Revolving Loan Commitments are reduced pursuant to SECTION 2.5, 2.6 or
2.7, (iv) all outstanding L/C Obligations in respect of Letters of Credit
denominated in a currency other than Dollars for purposes of calculating
compliance with the Financial Covenants as of the last Business Day of the
fiscal quarter for which computation thereof is made, and (v) all outstanding
L/C Obligations in respect of Letters of Credit denominated in a currency other
than Dollars for purposes of calculating the fees set forth in SECTION 2.4 as of
the last Business Day of the fiscal quarter for which computation thereof is
made. The Administrative Agent shall provide notice of any determination of the
Dollar Equivalent Amount to each of the Lenders that have issued a Revolving
Loan Commitment. Each determination of a Dollar Equivalent Amount by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. In the event that any determination of a Dollar Equivalent
Amount under this SECTION 2.3(G) shall cause the Dollar Equivalent Amount of the
aggregate amount of the L/C Obligations then outstanding to exceed the Letter of
Credit Committed Amount (or the sub-limit of the Letter of Credit Committed
Amount available for Letters of Credit issued in foreign currencies), the
Borrower shall, promptly upon demand by the Administrative Agent, pay to the
Administrative Agent, for the benefit of the Issuing Banks, an amount in Dollars
equal to such excess, which cash will be held as cash collateral by the
Administrative Agent for the L/C Obligations and applied to the payment of
drafts drawn under the Letters of Credit to which such excess is applicable and
the unused portion thereof, if any, after such Letters of Credit shall have
expired or been fully drawn upon or after a subsequent determination of the
Dollar Equivalent Amount shall cause the aggregate amount of L/C Obligations to
no longer exceed the Letter of Credit Committed Amount, shall be returned to the
Borrower.
37
Section 2.4 Fees
(a) COMMITMENT FEES. The Borrower agrees to pay to the
Administrative Agent, for the benefit of each of the Lenders (i) in accordance
with their respective Commitment Ratios for Revolving Loans, a commitment fee on
the average daily amount of the Unfunded Revolving Loan Commitments during each
quarter ending during the period from the Agreement Date until the Revolving
Loan Maturity Date at a rate of, (A) so long as the Unfunded Commitment
Percentage with respect to the Revolving Loan Commitments is greater than or
equal to fifty percent (50%), one-half of one percent (0.50%) per annum, and (B)
so long as the Unfunded Commitment Percentage with respect to the Revolving Loan
Commitments is less than fifty percent (50%), three-eighths of one percent
(0.375%) per annum; (ii) in accordance with their respective Commitment Ratios
for Term A Loans, a commitment fee on the average daily amount of the Unfunded
Term A Loan Commitments during each quarter ending during the Term A Loan
Funding Period at a rate of, (A) so long as the Unfunded Commitment Percentage
with respect to the Term A Loan Commitments is greater than or equal to fifty
percent (50%), one-half of one percent (0.50%) per annum, and (B) so long as the
Unfunded Commitment Percentage with respect to the Term A Loan Commitments is
less than fifty percent (50%), three-eighths of one percent (0.375%) per annum;
and (iii) in accordance with their respective Commitment Ratios for any
applicable Incremental Facility Commitments, a commitment fee on the average
daily amount of the undrawn amount of such Incremental Facility Commitments
during each quarter ending during the period from the date such Incremental
Facility Commitments shall be issued until the applicable Incremental Facility
Maturity Date at the rate set forth in the applicable Notice of Incremental
Facility Commitment. Such commitment fees shall be computed on the basis of a
year of 365/366 days for the actual number of days elapsed, shall be payable
quarterly in arrears on the last Business Day of each calendar quarter, shall be
fully earned when due, and shall be non-refundable when paid. A final payment of
any accrued and unpaid commitment fee shall also be due and payable on each
applicable Maturity Date.
(b) LETTER OF CREDIT FEE. The Borrower agrees to pay to the
Administrative Agent, for the benefit of the Lenders, in accordance with their
respective Commitment Ratios for Revolving Loans, a letter of credit fee payable
in Dollars calculated on the Dollar Equivalent Amount of the currency in which
such Letter of Credit is denominated at a rate per annum equal to the Applicable
Margin for Eurodollar Advances under the Revolving Loan Commitments (computed on
the basis of a 360 day year for the actual number of days elapsed) on the stated
amount of each Letter of Credit issued hereunder for each day such Letter of
Credit is outstanding. Such letter of credit fee shall be due and payable
quarterly in arrears on the last Business Day of each calendar quarter during
which such Letter of Credit is outstanding, and any accrued and unpaid letter of
credit fees shall also be due and payable on the Revolving Loan Maturity Date.
Such letter of credit fee shall be fully earned when due and nonrefundable when
paid. In the event of any inconsistency between the terms of this Agreement and
the terms of any letter of credit reimbursement agreements or indemnification
agreements between the Borrower and the Issuing Bank with respect to Letters of
Credit issued hereunder, the terms of this Agreement shall control.
(c) ISSUING BANK FEE. The Borrower agrees to pay to each Issuing
Bank, for its own account, an issuing bank fee in Dollars at a rate of
one-eighth of one percent (0.125%) per annum with respect to the issuance of a
Letter of Credit calculated on the Dollar Equivalent Amount of the currency in
which such Letter of Credit is denominated on the stated
38
amount of each Letter of Credit issued by such Issuing Bank hereunder, which fee
shall be due and payable quarterly in arrears on the last Business Day of each
calendar quarter in which such Letter of Credit is outstanding. The foregoing
fee shall be fully earned when due and nonrefundable when paid. In the event of
any inconsistency between the terms of this Agreement and the terms of any
letter of credit reimbursement agreements or indemnification agreements between
the Borrower and any Issuing Bank with respect to the Letters of Credit issued
by such Issuing Bank hereunder, the terms of this Agreement shall control.
(d) COMPUTATION OF FEES. In computing any fees payable under this
SECTION 2.4, the first day of the applicable period shall be included and the
date of payment shall be excluded.
Section 2.5 OPTIONAL PREPAYMENT/REDUCTION OF COMMITMENT.
(a) PREPAYMENT OF ADVANCES. The principal amount of any Base Rate
Advance under the Revolving Loan Commitments or any Incremental Facility
Commitments that are revolving loan commitments may be prepaid in full or in
part at any time, without penalty or premium, upon not less than one (1)
Business Days' prior written notice to the Administrative Agent; and the
principal amount of any Eurodollar Advance under the Revolving Loan Commitments
or any Incremental Facility Commitments that are revolving loan commitments may
be prepaid prior to the applicable Payment Date, without penalty or premium,
upon not less than three (3) Business Days' prior written notice to the
Administrative Agent, provided that the Borrower shall reimburse the Lenders and
the Administrative Agent, on demand, for any loss or out-of-pocket expense
incurred by any of them in connection with such prepayment of Eurodollar
Advances as set forth in SECTION 2.10. Each notice of prepayment given hereunder
shall be irrevocable. Upon receipt of any notice of prepayment, the
Administrative Agent shall promptly notify each Lender of the contents thereof
by telephone or telecopy and of such Lender's portion of the prepayment.
(b) Permanent Prepayment or Reduction.
(i) TERMS OF PREPAYMENTS OR REDUCTIONS. Optional
permanent prepayments of principal of the Term Loans, and permanent reductions
of the Revolving Loan Commitments and any Incremental Facility Commitments that
are revolving loan commitments, may be made at any time upon three (3) Business
Days' prior irrevocable written notice to the Administrative Agent, without
penalty or premium, provided that such prepayments or reductions shall be in
minimum amounts of $2,000,000 and integral multiples of $100,000; PROVIDED,
HOWEVER, that the prior written notice to the Administrative Agent required with
respect to any voluntary prepayments of any Loans made with proceeds of Advances
under, or the voluntary reduction of any Commitment replaced by the issuance of
a revolving loan commitment under, any Refinancing Incremental Facility, may, in
any such case, be made without regard to the three (3) Business Days period set
forth in the immediately preceding sentence; PROVIDED FURTHER, HOWEVER, that any
notice to the Administrative Agent given in connection with any voluntary
prepayment of the Loans which is dependent upon the closing of another
financing, or upon the closing of an asset sale or other disposition, may be
made subject to revocation.
(ii) Application of Payments or Reductions.
39
(A) In the event that the Borrower shall make a
prepayment of the Term Loans, such prepayment shall permanently reduce, on a pro
rata basis, the Term A Loans, the Term B Loans and, to the extent then
outstanding, any Incremental Facility Loans which are term loans.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence or in SECTION 2.5(B)(II)(C), any voluntary prepayments of any Term
Loans made with proceeds of Advances under any Refinancing Incremental Facility
shall be applied to permanently reduce the Term Loans being refinanced thereby.
Each such reduction of the Term Loans shall reduce, on a pro rata basis (or, at
the option of the Borrower, in direct order of maturity), the remaining
scheduled installments of principal due in respect of such Term Loans. Each
prepayment hereunder of any Eurodollar Advances shall also be made together with
accrued interest on the amount so prepaid.
(B) As of the date of cancellation or reduction set
forth in any notice thereof, the Revolving Loan Commitments shall be permanently
reduced to the amounts stated in the Borrower's notice for all purposes herein,
and the Borrower shall pay to the Administrative Agent, for the benefit of the
Lenders, the amount necessary to reduce the principal amount of the Revolving
Loans then outstanding to not more than the amount equal to the result of (I)
the Revolving Commitment as so reduced, less (II) the aggregate amount of L/C
Obligations then outstanding, together with the accrued interest on any
Eurodollar Advances so prepaid. To the extent that any Incremental Facility
Loans outstanding as of the date of any cancellation or reduction of the
Revolving Loan Commitments constitute revolving loans, the amount stated in the
Borrower's notice of cancellation or reduction of the Revolving Commitment shall
be applied to reduce, on a pro rata basis, the Revolving Commitment and the
Incremental Facility Commitment applicable to such Incremental Facility Loans,
and the Borrower shall pay to the Administrative Agent, for the benefit of the
Lenders, the amount necessary to reduce the principal amount of the Revolving
Loans then outstanding to not more than the amount equal to the result of (I)
the Revolving Commitment as so reduced, less (II) the aggregate amount of L/C
Obligations then outstanding, together with the accrued interest on the amount
of any Eurodollar Advances so prepaid, and the amount necessary to reduce the
principal amount of the Incremental Facility Loans then outstanding which are
revolving loans to not more than the amount of the Incremental Facility
Commitment applicable thereto as so reduced, together with the accrued interest
on the amount of any Eurodollar Advances so prepaid.
(C) In connection with any such permanent repayment,
the Borrower shall reimburse the Administrative Agent and the Lenders, on
demand, for any loss or out-of-pocket expense incurred by any of them in
connection with such repayment of any Eurodollar Advances as set forth in
SECTION 2.10. Upon receipt of any notice of prepayment or reduction, the
Administrative Agent shall promptly notify each Lender of the contents thereof
by telephone or telecopy and of such Lender's portion of the prepayment or the
reduction, as applicable.
Section 2.6 REPAYMENT.
(a) REVOLVING LOAN COMMITMENTS. Any unpaid principal of and
accrued interest on the Revolving Loans and any other outstanding Obligations
under the Revolving Loan Commitments shall be due and payable in full on the
Revolving Loan Maturity Date.
40
(b) TERM A LOANS. Commencing on December 31, 2006, and at the end
of each calendar quarter thereafter, the outstanding principal balance of the
Term A Loans then outstanding shall be repaid by an amount equal to the amount
(for such quarter and year) set forth below:
Quarterly Percentage of Term A Loans
Outstanding at the Expiration of the
Term A Loan Funding Period
QUARTERS ENDING DUE AT EACH QUARTER END
--------------------------------------------------------------------------------------
December 31, 2006 through September 30, 2007 2.50%
December 31, 2007 through September 30, 2008 3.75%
December 31, 2008 through September 30, 2009 5.00%
December 31, 2009 through September 30, 2010 5.00%
December 31, 2010 and thereafter 7.00%
Additionally, the Term A Loans shall be repaid as may be required by SECTION
2.7. Any unpaid principal and interest of the Term A Loans and any other
outstanding Obligations under the Term A Loan Commitments shall be due and
payable in full on the Term A Loan Maturity Date.
(c) TERM B LOANS. Commencing on March 31, 2005, and at the end
of each calendar quarter thereafter, the outstanding principal balance of the
Term B Loans then outstanding shall be repaid in an amount equal to one-quarter
of one percent (0.25%) of the outstanding principal amount of the Term B Loans
outstanding on March 31, 2005. Additionally, the Term B Loans shall be repaid as
may be required by SECTION 2.7. Any unpaid principal and interest of the Term B
Loans and any other outstanding Obligations under the Term B Loan Commitments
shall be due and payable in full on the Term B Loan Maturity Date, and so long
as no Incremental Facilities are outstanding, all other Obligations then
outstanding shall be due and payable on the Term B Loan Maturity Date.
(d) LETTER OF CREDIT ADVANCES. All Base Rate Advances made
pursuant to draws under the Letters of Credit shall be deemed to be Advances
under the Revolving Loan Commitment and shall be due and payable on the
Revolving Loan Maturity Date.
(e) INCREMENTAL FACILITY LOANS. Any unpaid principal and interest
of the Incremental Facility Loans and any other outstanding Obligations under
any of the Incremental Facility Commitments shall be due and payable in full on
the Incremental Facility Maturity Date applicable thereto.
Section 2.7 MANDATORY REPAYMENTS. In addition to the repayments
provided for in SECTION 2.6, the Borrower shall, if required pursuant to this
SECTION 2.7, prepay the Loans as follows:
(a) DISPOSITION OF ASSETS. If, after the Agreement Date, the
Borrower or any of its Restricted Subsidiaries shall sell, transfer or otherwise
dispose of (including, without limitation, by way of condemnation or casualty)
any of their respective assets with Net Cash Proceeds in excess of $25,000,000
in the aggregate during the term of this Agreement, one
41
hundred percent (100%) of the Net Cash Proceeds received by the Borrower or such
Restricted Subsidiary from such Sales Transaction shall be applied, on the date
of receipt thereof by the Borrower or such Restricted Subsidiary, to prepay the
Loans as set forth in SECTION 2.7(B); PROVIDED, HOWEVER, that, at the Borrower's
election, so long as no Default or Event of Default then exists or would be
caused thereby, the Borrower or any Restricted Subsidiary may use any such Net
Cash Proceeds to purchase or construct one or more Towers or otherwise to invest
in capital assets. In the event the Borrower elects to exercise its right to
reinvest Net Cash Proceeds under this SECTION 2.7(A), the Borrower shall so
notify the Administrative Agent not less than five (5) Business Days prior to
the proposed date of the closing of the sale or other disposition of assets and
shall, upon its or any Restricted Subsidiary's receipt of any Net Cash Proceeds
with respect to such sale or other disposition of assets, remit such Net Cash
Proceeds to the Administrative Agent to reduce the outstanding principal balance
of the Revolving Loans (but not the Term Loans nor the amount of the Revolving
Loan Commitment). Any amount in excess of the then outstanding balance of the
Revolving Loans may be retained by the Borrower. The Borrower shall consummate
the Acquisition of the Towers or other capital assets not later than twelve (12)
months after the date of the applicable Sales Transaction. To the extent that
the Borrower shall not have consummated any such purchase as of twelve (12)
months after the date of such Sales Transaction (for whatever reason, including
the occurrence of a Default or Event of Default hereunder), or the cash Purchase
Price of such purchase shall be less than the Net Cash Proceeds of the
applicable Sales Transaction, the Borrower shall apply such Net Cash Proceeds,
or the amount of such Net Cash Proceeds remaining after giving effect to any
purchases made during the twelve (12) month reinvestment period, to prepay the
Loans as set forth in SECTION 2.7(B).
(b) APPLICATION OF PAYMENTS. Except as otherwise permitted in
SECTION 2.7(A), the amount of any prepayment required to be made pursuant to
SECTION 2.7(A) shall be applied as follows: (i) first, to permanently reduce, on
a pro rata basis, the outstanding principal amount of the Term Loans with the
amount being applied to reduce, on a pro rata basis, the remaining scheduled
installments of principal due thereunder; and (ii) thereafter, to prepay, on a
pro rata basis, the outstanding principal amount of the Revolving Loans, with a
corresponding permanent reduction in the amount of the Revolving Loan Commitment
and, to the extent that any Incremental Facility Loans which are revolving loans
are then outstanding, the outstanding principal amount of such Incremental
Facility Loans, with a corresponding permanent reduction in the amount of the
Incremental Facility Commitment applicable thereto; PROVIDED HOWEVER, that if an
Event of Default has occurred and is continuing at the time of any prepayment
required to be made pursuant to this SECTION 2.7, the amount of such prepayment
shall be applied to prepay, on a pro rata basis, the Term Loans, the Revolving
Loans and any Incremental Facility Loans. Accrued interest on the principal
amount of each Eurodollar Advance of any Loans being prepaid pursuant to this
SECTION 2.7 to the date of such prepayment shall be paid by the Borrower
concurrently with such principal prepayment. In connection with any mandatory
repayment due under this SECTION 2.7, the Borrower shall reimburse the
Administrative Agent and the Lenders, on demand, for any loss or out-of-pocket
expense incurred by any of them in connection with such repayment of any
Eurodollar Advances as set forth in SECTION 2.10.
(c) REVOLVING LOANS. If at any time the aggregate principal
amount of Revolving Loans then outstanding shall, for any reason, exceed the
result of (i) the Revolving Commitment, less (ii) the aggregate Dollar
Equivalent Amount of L/C Obligations then
42
outstanding, the Borrower shall immediately make a payment of the Revolving
Loans in the amount of such excess, together with accrued interest on the amount
so prepaid.
Section 2.8 NOTES; LOAN ACCOUNTS.
(a) The Loans shall be repayable in accordance with the terms
and provisions set forth herein. Upon the request of any Lender, Notes shall be
issued by the Borrower to the order of such Lender in accordance with its
Commitment Ratios with respect to the Loans. If applicable, upon the request of
any Incremental Facility Lender, Incremental Facility Loan Notes shall be issued
by the Borrower to the order of such Incremental Facility Lender in accordance
with its Commitment Ratio with respect to the Incremental Facility Commitments.
Any Notes issued by the Borrower to the order of any requesting Lender shall be
duly executed and delivered by one or more Authorized Signatories of the
Borrower.
(b) Each Lender may open and maintain on its books in the name
of the Borrower a loan account with respect to such Lender's portion of the
Loans and interest thereon. Each Lender which opens such a loan account shall
debit such loan account for the principal amount of its portion of each Advance
made and accrued interest thereon and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Lender with respect to the loan account maintained by it shall be prima facie
evidence of the Loans of such Lender and accrued interest thereon, but the
failure of any Lender to maintain such records or to make any such notations, or
any error or mistake in such notations, shall not affect the Borrower's
repayment obligations with respect to such Loans.
Section 2.9 MANNER OF PAYMENT
(a) Each payment (including any prepayment) by the Borrower on
account of the principal of or interest on the Loans, commitment fees, letter of
credit fees and any other amount owed to any of the Credit Parties under this
Agreement, any fee letters or the Notes shall be made not later than 2:00 p.m.
(New York time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office, for the account of
the applicable Credit Party, in Dollars in immediately available funds. Any
payment received by the Administrative Agent after 2:00 p.m. (New York time)
shall, solely for the purpose of calculating interest, be deemed received on the
next Business Day. Receipt by the Administrative Agent of any payment hereunder
at or prior to 2:00 p.m. (New York time) on any Business Day shall be deemed to
constitute receipt on such Business Day. In the case of a payment for the
account of a Lender, the Administrative Agent will promptly thereafter
distribute the amount so received in like funds to such Lender. If the
Administrative Agent shall not have received any payment from the Borrower as
and when due, the Administrative Agent will promptly notify the Credit Parties
accordingly.
(b) The Borrower agrees to pay principal, interest, fees and all
other Obligations due hereunder, under any fee letters, under the Notes, or
under the other Loan Documents without set-off or counterclaim or any deduction
whatsoever, excluding any deduction or withholding for present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority (such
items being called "TAXES") that the Borrower under SECTION 2.13(A) is required
by Applicable Law to withhold (including Taxes for which the Borrower may be
required to pay Additional Amounts to any Credit Party).
43
(c) Prior to the acceleration of the Loans under SECTION 10.2 or
the Final Maturity Date, and other than with respect to payments made pursuant
to SECTION 2.5 or SECTION 2.7 (which shall, in each case, be applied as set
forth therein), if some but less than all amounts due from the Borrower are
received by the Administrative Agent, the Administrative Agent shall distribute
such amounts in the following order of priority to the Lenders on a pro rata
basis: (i) FIRST, to the payment of any fees, costs or expenses then due and
payable to any of the Credit Parties hereunder or under any other Loan Document;
(ii) SECOND, to the payment of interest then due and payable on the Loans; (iii)
THIRD, on a pro rata basis, to the payment of principal then due and payable on
the Term Loans; (iv) FOURTH, on a pro rata basis, to the payment of principal
then due and payable on the Revolving Loans and any Incremental Facility Loans
which are revolving loans; and (v) FIFTH, to the payment of all other amounts
not otherwise referred to in this SECTION 2.9(C) then due and payable to the
Credit Parties hereunder or under any other Loan Document.
(d) Subject to any contrary provisions in the definition of
Eurodollar Advance Period, if any payment under this Agreement or any of the
other Loan Documents is specified to be made on a day which is not a Business
Day, it shall be made on the next Business Day, and such extension of time shall
in such case be included in computing interest and fees, if any, in connection
with such payment.
Section 2.10 REIMBURSEMENT
(a) Whenever any Lender shall sustain or incur any losses or
out-of-pocket expenses in connection with (i) failure by the Borrower to borrow
any Eurodollar Advance after having given notice of its intention to borrow in
accordance with SECTION 2.2 (whether by reason of the Borrower's election not to
proceed or the non-fulfillment of any of the conditions set forth in Article 4),
(ii) prepayment of any Eurodollar Advance in whole or in part for any reason, or
(iii) failure by the Borrower to prepay any Eurodollar Advance after giving
notice of its intention to prepay such Advance, the Borrower agrees to pay to
such Lender, upon demand, an amount sufficient to compensate such Lender for all
such losses and reasonable out-of-pocket expenses resulting therefrom, but
excluding, for avoidance of doubt, any lost margin or profit. Such Lender's good
faith determination of the amount of such losses or out-of-pocket expenses, as
set forth in writing and accompanied by calculations in reasonable detail
demonstrating the basis for its demand, which shall be delivered to the Borrower
by the Administrative Agent on behalf of such Lender within thirty (30) days of
the date of the incurrence of such losses or expenses (the failure of which
shall relieve the Borrower of its obligation to repay such losses or expenses),
shall be presumptively correct.
(b) Expenses subject to reimbursement hereunder shall include,
without limiting the generality of the foregoing, expenses incurred by any
Lender or any participant of such Lender permitted hereunder in connection with
the re-employment of funds prepaid, repaid, not borrowed or paid, as the case
may be, and the amount of the expenses subject to reimbursement hereunder shall
be the excess, if any, of (i) the interest or other cost to such Lender of the
deposit or other source of funding used to make any such Eurodollar Advance for
the remainder of its Eurodollar Advance Period, over (ii) the interest earned
(or to be earned) by such Lender upon the re-lending or other re-deployment of
the amount of such Eurodollar Advance for the remainder of its putative
Eurodollar Advance Period.
Section 2.11 PRO RATA TREATMENT.
44
(a) ADVANCES. Each Advance of any of the Loans from the Lenders
shall be made pro rata on the basis of their respective Commitment Ratios.
(b) PAYMENTS PRIOR TO DECLARATION OF AN EVENT OF DEFAULT. Except
as provided in SECTION 2.2(E)(IV), prior to the declaration of an Event of
Default by the Administrative Agent on behalf of the Lenders under SECTION 10.2,
each payment and prepayment of principal of the Loans, and each payment of
interest on the Loans, shall be made to the Lenders pro rata on the basis of
their respective Commitment Ratios. If any Lender shall obtain any payment
(whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans made by it in excess of its ratable share of
the Loans under its Commitment Ratio with respect thereto, such Lender shall
forthwith purchase from the other Lenders such participations in the applicable
Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of the other Lenders; PROVIDED,
HOWEVER, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender shall be
rescinded, and each such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
SECTION 2.11(B) 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. The provisions of this SECTION
2.11(B) set forth the rights of the Lenders with respect to payment, and are not
enforceable for the benefit of the Borrower.
(c) PAYMENTS SUBSEQUENT TO DECLARATION OF AN EVENT OF DEFAULT.
Subsequent to the declaration of an Event of Default by the Administrative Agent
on behalf of the Lenders under SECTION 10.2, payments and prepayments made to
any of the Credit Parties, or otherwise received by any of the Credit Parties,
shall be distributed as provided in SECTION 10.3.
(d) The Obligations shall, notwithstanding any judgment of any
court, arbitral tribunal or similar authority specifying judgment in any
currency other than Dollars (as so specified, the "JUDGMENT CURRENCY"), be
discharged only to the extent that, on the date when received in Dollars by the
Administrative Agent or the Lenders or any of them, the Dollar Equivalent Amount
of the sum adjudged to be so due in the Judgment Currency is equal to the amount
of the Obligations then outstanding. If the Dollar Equivalent Amount of the
Judgment Currency is less than the amount of the Obligations then outstanding,
the Borrower agrees to indemnify the Administrative Agent and the Lenders, as
the case may be, against such difference, and if the Dollar Equivalent Amount of
the Judgment Currency is greater than the amount of the Obligations then
outstanding, the Administrative Agent and the Lenders, as the case may be, shall
remit such excess to the Borrower, but only to the extent that such excess
amount has been actually received from the Borrower. The calculations of the
Administrative Agent thereof shall be conclusive absent manifest error.
Section 2.12 CAPITAL ADEQUACY. If any Lender shall have reasonably
determined that the adoption (after the Agreement Date) of any Applicable Law
regarding the capital adequacy of banks or bank holding companies, or any change
in Applicable Law after the Agreement Date or any change after the Agreement
Date in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender with any directive issued
or adopted after the date hereof regarding capital adequacy (whether or not
having the force of
45
law) of any such governmental authority, central bank or comparable agency, in
each case first promulgated after the Agreement Date, has or would have 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 it could have achieved
but for such adoption, change or compliance (taking into consideration such
Lender's policies with respect to capital adequacy immediately before such
adoption, change or compliance and assuming that such Lender's capital was fully
utilized prior to such adoption, change or compliance) by an amount reasonably
deemed by such Lender to be material, then such Lender shall promptly notify the
Borrower of such adoption, compliance, or change. Within sixty (60) days of
written notice by such Lender, the Borrower shall, in its discretion, (i)
provide a replacement lender or lenders for such Lender, which replacement
lender or lenders will be subject to the approval of the Administrative Agent,
which shall not be unreasonably withheld, and the Administrative Agent, such
Lender and the Borrower shall take all necessary actions to transfer the rights,
duties and obligations of such Lender to such replacement lender or lenders
within such sixty (60) day period (including, without limitation, the payment in
full of all Obligations hereunder due to the Lender being replaced which shall
include compensation for the reduced return that the Lender is entitled to
receive pursuant to this SECTION 2.12 through the date of such transfer;
PROVIDED, that, if the Lender rescinds its demand for compensation within five
(5) days of notice of replacement, the Borrower shall not have the right to
replace such Lender), or (ii) thereafter, from time to time upon demand by such
Lender, promptly pay to such Lender such additional amounts as shall be
sufficient to compensate such Lender for such reduced return, together with
interest on such amount from the fourth (4th) day after the date of demand until
payment in full thereof at the Base Rate plus the Applicable Margin in effect
for Base Rate Advances under the Revolving Loan Commitments; PROVIDED, HOWEVER,
that notwithstanding the foregoing, the Borrower shall have no obligation to
provide any such replacement bank or make any such payment in the event that the
first such demand in respect of any such regulatory change, request or directive
regarding capital adequacy was sent by such Lender more than ninety (90) days
after it became aware of the applicability of such regulatory change, request or
directive to the Loans. Such Lender will designate a different lending office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
materially disadvantageous to such Lender. A certificate of such Lender setting
forth the amount to be paid to such Lender by the Borrower as a result of any
event referred to in this paragraph and supporting calculations in reasonable
detail shall be conclusive, absent manifest error.
Section 2.13 TAXES.
(a) If the Borrower shall be required by Applicable Law to deduct
any Taxes from or in respect of any amounts payable to the Administrative Agent
or any other Credit Party hereunder or under any Note, excluding (A) net income
taxes and franchise taxes (imposed in lieu of net income taxes), in each case
imposed on the Administrative Agent or any other Credit Party as a result of a
present or former connection between the Administrative Agent or such other
Credit Party and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent's or such
other Credit Party's having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or any other Loan
Document), (B) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction described in clause (A)
above, (C) any taxes that are attributable to such other Credit Party's failure
to comply with the
46
requirements of this SECTION 2.13, and (D) any withholding taxes imposed on
amounts payable to any Credit Party at the time such Credit Party becomes a
party to this Agreement, except to the extent that such Credit Party's assignor
(if any) was entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such Non-Excluded Taxes pursuant to this
SECTION 2.13(A) (such non-excluded items being called "NON-EXCLUDED TAXES" and
such excluded items being called "EXCLUDED TAXES"), (i) except as otherwise
provided in this SECTION 2.13, the sum payable shall be increased ("ADDITIONAL
AMOUNTS") as necessary so that, after making all required deductions (including,
without limitation, deductions applicable to additional sums payable under
SECTION 2.9(B)), the Administrative Agent or such other Credit Party, as the
case may be, shall receive an amount equal to the sum it would have received had
no deductions been made, (ii) the Borrower shall make such deductions, and (iii)
the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with Applicable Law. Moreover, if any
Taxes are directly asserted against any Credit Party with respect to any payment
received by such Credit Party hereunder, such Credit Party may pay such
Non-Excluded Taxes, and, except as otherwise provided in this Section, the
Borrower will promptly pay such Additional Amount (including, without
limitation, any penalties, interest or expenses thereto) as is necessary in
order that the net amount received and retained by such Credit Party after the
payment of such Non-Excluded Taxes (including, without limitation, any Taxes on
such additional amount) shall equal the amount such Credit Party would have
received and retained had no such Non-Excluded Taxes been asserted; PROVIDED,
HOWEVER, such Credit Party shall promptly give written notice to the Borrower,
accompanied by, to the extent provided by the relevant taxing authority, a
calculation in reasonable detail of the amount demanded and evidence of the
Non-Excluded Taxes imposed on such Credit Party, after such Credit Party has
actual knowledge of the imposition of any Non-Excluded Taxes. Where notice is
not given to the Borrower within ninety (90) days after the Credit Party
receives written notice of the assertion of Non-Excluded Taxes and the Borrower
does not otherwise have notice of such assertion, the Borrower shall not be
required to pay penalties, additions to taxes, expenses, and interest accruing
on such Non-Excluded Taxes from the date ninety (90) days after the receipt by
the Credit Party of written notice of the assertion of such Non-Excluded Taxes
until the date that the Borrower receives such notice. The Borrower shall
furnish to such Credit Party within forty-five (45) days (or as soon thereafter
as available) after the date the payment of any Non-Excluded Taxes is due
pursuant to Applicable Law true and correct copies of tax receipts evidencing
payment by the Borrower to the extent that such receipts are issued therefor.
Except as otherwise provided in this Section, if the Borrower fails to pay any
Taxes that it is required to pay pursuant to the terms of this Agreement when
due to the appropriate taxing authority or fail to remit to any of the Credit
Parties the required receipts or other required documentary evidence, the
Borrower shall indemnify the Credit Parties for any incremental Taxes, interest
or penalties that may become payable by the Credit Parties primarily as a result
of any such failure.
(b) Each Lender that is a United States person that is not a
"domestic" corporation (as defined in Section 7701 of the Code) shall deliver to
the Borrower and the Administrative Agent, on or prior to the Agreement Date
(or, if such Lender becomes a party to this Agreement (whether by assignment or
otherwise) after the Agreement Date, the date upon which such Lender becomes a
party hereto) and on or prior to the first Business Day of each calendar year
thereafter, and from time to time thereafter as reasonably requested in writing
by the Borrower, one complete, duly executed original IRS Form W-9, or any
successor form thereto. Each Lender (including any Lender described in the
preceding sentence) that is not a United States person within the meaning of
Section 7701 of the Code (a "FOREIGN LENDER") shall
47
deliver to the Borrower and the Administrative Agent, on or prior to the
Agreement Date (or if such Foreign Lender becomes a party to this Agreement
(whether by assignment or otherwise) after the date hereof, the date upon which
such Foreign Lender becomes a party hereto) and on or prior to the first
Business Day of each calendar year thereafter and from time to time thereafter
as reasonably requested in writing by the Borrower, either (i) two (2) complete,
duly executed original IRS Forms W-8ECI, W-8IMY or W-8BEN, as appropriate, or
any successors thereto, establishing that such Foreign Lender is entitled to
receive any and all payments from the Borrower under this Agreement free from
withholding of United States federal income tax or (ii) in the case of such
Foreign Lender that is not legally entitled to deliver any of the forms listed
in the foregoing clause (i), (A) a certificate of a duly authorized officer of
such Foreign Lender to the effect that such Foreign Lender is not (I) a "bank"
within the meaning of Section 881(c)(3)(A) of the Code, (II) a "10 percent
shareholder" of the Borrower within the meaning of Section 881(c)(3)(B) of the
Code or (III) a controlled foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of the Code (such certificate,
an "EXEMPTION CERTIFICATE") and (B) two (2) complete, duly executed original IRS
Forms W-8BEN or W-8IMY, as appropriate, or any successor thereto, certifying
that such Foreign Lender is entitled to a complete exemption from United States
federal withholding tax on payments of interest. Each Foreign Lender shall, from
time to time, deliver updated or corrected IRS Forms W-8ECI, IRS Forms W-8IMY,
IRS Forms W-8BEN or Exemption Certificates, or any successors thereto, to the
Borrower and the Administrative Agent upon their expiration or obsolescence to
the extent and in the manner required under United States federal tax law or
after the occurrence of any event requiring a change in the most recent forms or
other documents delivered by such Lender. Such Credit Party shall promptly
provide written notice to the Borrower and the Administrative Agent at any time
it determines that it is no longer in a position to provide any previously
delivered form or other document (or any other form or certification adopted by
the IRS). The Borrower shall not be required to pay any Additional Amounts under
SECTION 2.9(B), SECTION 2.13(A) or SECTION 6.10(A) hereof to a Lender if such
Foreign Lender (x) fails to provide the proper forms or other documentation
described in this SECTION 2.13(B), (y) fails to qualify for a complete reduction
or exemption of United States federal tax withholding for any reason other than
a change in the United States federal tax law, or the official interpretation
thereof, in each case, after the delivery of IRS Forms W-8ECI, IRS Forms W-8IMY,
IRS Forms W-8BEN or an Exemption Certificate, or any successors thereto, or (z)
is treated as a "conduit entity" within the meaning of U.S. Treasury Regulations
Section 1.881-3 or any successor provision.
(c) Each of the Credit Parties agrees that it will, to the extent
reasonable and without material cost or risk to it, (i) take all actions
reasonably requested by the Borrower to maintain all exemptions, if any,
available to it from United States federal withholding taxes (whether available
by treaty, statute, or existing administrative waiver) and (ii) otherwise
cooperate with the Borrower to minimize any amounts payable by the Borrower
under this SECTION 2.13.
(d) Any Credit Party that becomes aware that it is entitled to
receive a refund (whether by way of a direct payment or by offset) in respect of
Additional Amounts paid by the Borrower, which refund would reasonably be
considered allocable to or resulting from such payment or indemnification made
pursuant to this SECTION 2.13, shall promptly notify the Borrower of the
availability of such refund and shall, within thirty (30) days after the receipt
of a request from the Borrower, apply for such refund with the Borrower being
responsible for any
48
incremental costs associated with such refund request; PROVIDED, HOWEVER, that
(i) the Borrower shall not be entitled to any collateral damages as a result of
the failure of such Credit Party to so notify the Borrower of the availability
of such refund and (ii) the Borrower shall not have the right to examine the
books or records of any Credit Party. If any Credit Party receives any such
refund (as described in the preceding sentence), so long as no Default or Event
of Default has occurred and is continuing, it shall promptly repay the amount of
such refund (together with any interest received thereon) to the Borrower;
PROVIDED, HOWEVER, that the Borrower, upon the request of the applicable Credit
Party, shall repay the amount paid over to the Borrower in the event such Credit
Party is required to repay such refund to the applicable authority.
(e) If the Borrower is or becomes required to pay any Additional
Amounts to a Credit Party pursuant to this SECTION 2.13, the Borrower shall have
the right, upon notice to the Administrative Agent and such Credit Party, to (i)
prepay without penalty, on non-pro rata basis, all or any portion of a Loan held
by such Credit Party plus all interest and Additional Amounts owing to such
Credit Party as of the date of such prepayment, (ii) require such Credit Party
to use reasonable efforts to designate a different lending office for funding or
booking its Loan under this Agreement or to assign its rights and obligations
under this Agreement to another of its offices, branches or affiliates, or (iii)
require such Credit Party to effect an assignment of all of its rights and
obligations under this Agreement to another Credit Party designated by the
Borrower if, in the case of the foregoing clauses (ii) and (iii), such
designation or assignment (A) would eliminate or reduce amounts payable pursuant
to SECTION 2.13 in the future and (B) would not cause the imposition on such
Credit Party of any additional costs or legal or regulatory burdens deemed by
such Credit Party, in its reasonable judgment, to be material or otherwise
disadvantageous to such Credit Party.
Section 2.14 LETTERS OF CREDIT.
(a) LETTER OF CREDIT COMMITTED AMOUNT.
(i) Subject to the terms and conditions hereof, each
Issuing Bank, in reliance on the agreements of the L/C Participants set forth in
SECTION 2.14(D)(I), agrees to issue Letters of Credit denominated in Dollars
(or, if available to such Issuing Bank, in any foreign currency) for the account
of the Borrower prior to the Revolving Loan Maturity Date, in such form as may
be approved from time to time by such Issuing Bank; provided that no Issuing
Bank shall issue any Letter of Credit if, after giving effect to such issuance,
(A) the Dollar Equivalent Amount of the aggregate amount of the L/C Obligations
would exceed the Letter of Credit Committed Amount, (B) the Dollar Equivalent
Amount of the aggregate amount of the L/C Obligations outstanding in respect of
Letters of Credit issued in foreign currencies would exceed $20,000,000, or (C)
the sum of (I) the aggregate principal amount of Revolving Loans then
outstanding, plus (II) the aggregate amount of L/C Obligations then outstanding,
would exceed the Revolving Loan Commitments. It is hereby acknowledged and
agreed that each Existing Letter of Credit (including any extension thereof)
which is to remain outstanding on the Agreement Date shall constitute a "Letter
of Credit" for all purposes of this Agreement.
(ii) Each Letter of Credit shall (A) be either (x) a
standby letter of credit issued to support obligations of the Borrower or any of
its Restricted Subsidiaries, contingent or otherwise, to finance the working
capital and business needs of the Borrower or any of its Restricted Subsidiaries
in the ordinary course of business, or (y) if available to the applicable
Issuing Bank, a commercial letter of credit issued in respect of the purchase of
goods or
49
services by the Borrower or any of its Restricted Subsidiaries in the ordinary
course of business, and (B) expire no later than the earlier of (x) the date
that is twelve (12) months after the date of its issuance and (y) the fifth
(5th) Business Day prior to the Revolving Loan Maturity Date
(iii) Each Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent therewith, the laws of the State of
New York or, in any case where the applicable Issuing Bank issues such Letters
of Credit from an office located outside of the United States, the laws of the
jurisdiction in which such office is located.
(iv) No Issuing Bank shall at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause such Issuing Bank or any L/C Participant to exceed any limits imposed by,
any Applicable Law.
(b) PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower may
request that an Issuing Bank issue a Letter of Credit, at any time prior to the
fifth (5th) Business Day prior to the Revolving Loan Maturity Date, by
delivering to such Issuing Bank at its address for notices specified herein,
with a copy to the Administrative Agent, a Request for Issuance of Letter of
Credit, completed to the satisfaction of such Issuing Bank, and such other
certificates, documents and other papers and information as such Issuing Bank
may request. Upon receipt of any Request for Issuance of Letter of Credit, the
applicable Issuing Bank will process the Letter of Credit Application
accompanying such Request for Issuance of Letter of Credit, and the
certificates, documents and other papers and information delivered to it in
connection therewith, in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall any
Issuing Bank be required to issue any Letter of Credit earlier than three (3)
Business Days after its receipt of any Request for Issuance of Letter of Credit
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed by the applicable
Issuing Bank and the Borrower. The applicable Issuing Bank shall furnish a copy
of such Letter of Credit to the Borrower and the Administrative Agent promptly
following the issuance thereof.
(c) FEES, COMMISSIONS AND OTHER CHARGES.
(i) The Borrower shall pay to the Administrative Agent,
for the account of each Issuing Bank and the L/C Participants, with respect to
each Letter of Credit issued by such Issuing Bank hereunder, a per annum letter
of credit fee as and to the extent set forth in SECTION 2.4(B). In addition, the
Borrower shall pay to each Issuing Bank, for its own account, an issuing fee, as
set forth in SECTION 2.4(C), with respect to each Letter of Credit issued by
such Issuing Bank hereunder.
(ii) In addition to the foregoing fees and commissions,
the Borrower shall pay or reimburse each Issuing Bank for such normal and
customary costs and expenses as are incurred or charged by such Issuing Bank in
issuing, effecting payment under, amending or otherwise administering any Letter
of Credit issued by it.
(iii) The Administrative Agent shall, promptly following
its receipt thereof, distribute to each Issuing Bank and the L/C Participants
all fees and commissions
50
received by the Administrative Agent for their respective accounts pursuant to
this SECTION 2.14(C).
(d) L/C PARTICIPATIONS.
(i) Each Issuing Bank irrevocably agrees to grant and
hereby grants to each L/C Participant and, to induce such Issuing Bank to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from such Issuing Bank, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Commitment Ratio
for Revolving Loans from time to time in effect in such Issuing Bank's rights
and obligations under each Letter of Credit issued by it hereunder and each
Letter of Credit Application and the amount of each draft paid by such Issuing
Bank thereunder. Each L/C Participant unconditionally and irrevocably agrees
with each Issuing Bank that, if a draft is paid under any Letter of Credit for
which such Issuing Bank is not reimbursed in full by the Borrower in accordance
with the terms of this Agreement, such L/C Participant shall pay to such Issuing
Bank upon demand at such Issuing Bank's address for notices specified herein an
amount equal to such L/C Participant's then Commitment Ratio for Revolving Loans
of the amount of such draft, or any part thereof, which is not so reimbursed. If
such demand is made prior to 12:00 noon (New York time) on a Business Day, such
L/C Participant shall make such payment to the applicable Issuing Bank prior to
the end of such Business Day and otherwise such L/C Participant shall make such
payment on the next succeeding Business Day. Any such payment to be made by an
L/C Participant to the Issuing Bank with respect to Letters of Credit issued in
foreign currencies may be made in such foreign currency or in the Dollar
Equivalent Amount thereof as of the date on which such payment is to be made.
(ii) If any amount required to be paid by any L/C
Participant to any Issuing Bank pursuant to SECTION 2.14(D)(I) in respect of any
unreimbursed portion of any payment made by such Issuing Bank under any Letter
of Credit is not paid on the date such payment is due but is paid to such
Issuing Bank within three (3) Business Days after the date such payment is due,
such L/C Participant shall pay to such Issuing Bank on demand an amount equal to
the product of (A) such amount, times (B) the daily average Federal Funds Rate,
as quoted by the applicable Issuing Bank, times (C) a fraction, the numerator of
which is the number of days that elapse during such period and the denominator
of which is 360. If any such amount required to be paid by any L/C Participant
pursuant to SECTION 2.14(D)(I) is not in fact made available to the applicable
Issuing Bank by such L/C Participant within three (3) Business Days after the
date such payment is due, such Issuing Bank shall be entitled to recover from
such L/C Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to Base Rate Advances
hereunder. A certificate of the applicable Issuing Bank submitted to any L/C
Participant with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(iii) Whenever, at any time after an Issuing Bank has made
payment under any Letter of Credit issued by it and has received from any L/C
Participant its pro rata share of such payment in accordance with SECTION
2.14(D)(I), such Issuing Bank receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of
Collateral applied thereto by such Issuing Bank), or any payment of interest on
account thereof, such Issuing Bank will, if such payment is received prior to
12:00 noon (New York time) on a Business Day, distribute to such L/C Participant
its pro rata share
51
thereof prior to the end of such Business Day and otherwise such Issuing Bank
will distribute such payment on the next succeeding Business Day; PROVIDED,
HOWEVER, that in the event that any such payment received by such Issuing Bank
shall be required to be returned by such Issuing Bank, such L/C Participant
shall return to the applicable Issuing Bank the portion thereof previously
distributed by such Issuing Bank to it.
(e) REIMBURSEMENT OBLIGATION OF THE BORROWER.
(i) The Borrower agrees to reimburse each Issuing Bank,
on the same Business Day on which a draft is presented under any Letter of
Credit and paid by such Issuing Bank, provided that such Issuing Bank provides
notice to the Borrower prior to 12 noon (New York time) on such Business Day,
and otherwise the Borrower will reimburse such Issuing Bank on the next
succeeding Business Day. The failure to provide such notice shall not affect the
Borrower's absolute and unconditional obligation to reimburse the applicable
Issuing Bank for any draft paid under any Letter of Credit issued by it. The
applicable Issuing Bank shall provide notice to the Borrower on such Business
Day as a draft is presented and paid by such Issuing Bank indicating the amount
of (A) such draft so paid and (B) any taxes, fees, charges or other costs or
expenses incurred by such Issuing Bank in connection with such payment. Each
such payment shall be made to the applicable Issuing Bank at its address for
notices specified herein in Dollars (or, in the case of Letters of Credit issued
in foreign currencies, such foreign currency or the Dollar Equivalent Amount
thereof) in immediately available funds.
(ii) Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this SECTION 2.14(E) from the date such
amounts are drawn until payment in full at the rate which would be payable on
any outstanding Base Rate Advances of Revolving Loans.
(iii) Each drawing under any Letter of Credit shall
constitute a request, with no further action required, by the Borrower to the
Administrative Agent for a borrowing pursuant to SECTION 2.2(B) in the Dollar
Equivalent Amount of such drawing. The funding date with respect to such
borrowing shall be the date of such drawing.
(f) OBLIGATIONS ABSOLUTE.
(i) The Borrower's obligations under this SECTION 2.14
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against any Issuing Bank, any L/C Participant or
any beneficiary of a Letter of Credit.
(ii) The Borrower also agrees with each Issuing Bank and
each L/C Participant that neither any Issuing Bank nor any L/C Participant shall
be responsible for, and the Borrower's reimbursement obligations under SECTION
2.14(E)(I) shall not be affected by, among other things, (A) the validity or
genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or (B) any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred, or
(C) any claims whatsoever of Borrower against any beneficiary of such Letter of
Credit or any such transferee.
52
(iii) Neither any Issuing Bank nor any L/C Participant
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions caused by
the applicable Issuing Bank's gross negligence or willful misconduct.
(iv) The Borrower agrees that any action taken or omitted
by an Issuing Bank under or in connection with any Letter of Credit or the
related drafts or documents, if done in absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of such Issuing Bank or any L/C Participant to
the Borrower.
(g) LETTER OF CREDIT PAYMENTS. If any draft shall be presented
for payment under any Letter of Credit, the responsibility of the applicable
Issuing Bank to the Borrower in connection with such draft shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment are in conformity with
such Letter of Credit.
(h) APPLICATION. To the extent that any provision of any Request
for Issuance of Letter of Credit or any Letter of Credit Application related to
any Letter of Credit is inconsistent with the provisions of this SECTION 2.14,
the provisions of this SECTION 2.14 shall apply.
(i) CHANGE IN LAW. If any change after the Agreement Date in
Applicable Law, any change in the interpretation or administration thereof, or
any change after the Agreement Date in compliance with Applicable Law by any
Issuing Bank or any other Lender as a result of any request or directive of any
governmental authority, central bank or comparable agency (whether or not having
the force of law) shall (i) impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System), special deposit, capital adequacy, assessment or other
requirements or conditions against letters of credit issued by any Issuing Bank
or against participations by any L/C Participant in the Letters of Credit or
(ii) impose on any Issuing Bank or any L/C Participant any other condition
regarding any Letter of Credit or any participation therein, and the result of
any of the foregoing in the reasonable determination of such Issuing Bank or
such L/C Participant, as the case may be, is to increase the cost to such
Issuing Bank or such L/C Participant of issuing or maintaining any Letter of
Credit or purchasing or maintaining any participation therein, as the case may
be, by an amount (which amount shall be reasonably determined) deemed by such
Issuing Bank or such L/C Participant to be material, then, on the earlier of (x)
five (5) days following the date of demand (which demand shall be made not later
than three (3) months following such change) by such Issuing Bank or such L/C
Participant or (y) the Revolving Loan Maturity Date, the Borrower shall
immediately pay to such Issuing Bank or such L/C Participant, as the case may
be, such additional amount or amounts (other than Non-Excluded Taxes already
covered by SECTION 2.13(A), Excluded Taxes and additional amounts payable as a
result of the change in the rate or the method of calculation of tax on the
overall net income of such Lender) as such Issuing Bank or such L/C Participant,
as the case may be, determines will compensate it for such increased costs.
Within sixty (60) days of such written demand by such Issuing Bank or such L/C
Participant, the Borrower may, in its discretion,
53
provide a replacement lender or lenders for such Issuing Bank or such L/C
Participant, which replacement lender or lenders will be subject to the approval
of the Administrative Agent, which shall not be unreasonably withheld, and the
Administrative Agent, such Lender and the Borrower shall take all necessary
actions to transfer the rights, duties and obligations of such Issuing Bank or
such L/C Participant to such replacement lender or lenders within such sixty
(60) day period, which shall include any increased costs that such Lender is
entitled to receive pursuant to this SECTION 2.14(I) through the date of such
assignment. A certificate of such Lender or such Issuing Bank setting forth the
amount, and in reasonable detail, the basis for such Issuing Bank or such L/C
Participant's determination of such amount, to be paid to such Issuing Bank or
such L/C Participant by the Borrower as a result of any event referred to in
this paragraph shall, absent manifest error, be conclusive. Such certificate
shall be delivered to the Borrower with each written demand for payment
referenced above. Each Issuing Bank and each L/C Participant further agree that
they shall use their best efforts to give the Borrower thirty (30) days prior
notice, and in any event shall give prompt notice, of any event referred to in
this paragraph which may have the effect of materially increasing the cost to
such Issuing Bank or such L/C Participant of issuing or maintaining any Letter
of Credit or purchasing or maintaining any participation therein.
(j) INDEMNITY. The Borrower will indemnify and hold harmless the
Indemnified Parties from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including, without
limitation, reasonable attorneys' fees, but excluding Excluded Taxes and
Non-Excluded Taxes covered by SECTION 2.13(A)) which may be imposed on, incurred
by or asserted against any such Indemnified Parties in any way relating to or
arising out of the issuance of a Letter of Credit, except that the Borrower
shall not be liable to any of the Indemnified Parties for any portion of such
claims, liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Indemnified Parties as determined by a
final, non-appealable judicial order. No Indemnified Party shall be liable for
any special, indirect, consequential or punitive damages in connection with this
Agreement and the transactions contemplated hereby. This SECTION 2.14(J) shall
survive termination of this Agreement.
Section 2.15 INCREMENTAL FACILITY LOANS.
(a) Subject to the terms and conditions of this Agreement, the
Borrower may request an Incremental Facility Commitment on any Business Day;
PROVIDED, HOWEVER, that (i) the Borrower may not request an Incremental Facility
Commitment or an Incremental Facility Loan during the continuance of a Default
or Event of Default, including, without limitation, any Default or Event of
Default that would result after giving effect to any Incremental Facility Loan;
(ii) the aggregate principal amount of any Incremental Facilities, the proceeds
of which do not refinance any of the Loans (a "NON-REFINANCING INCREMENTAL
FACILITY"), shall not exceed $400,000,000; and (iii) the aggregate amount of
Incremental Facilities the entire net proceeds of which are used to refinance
all or any portion of the Loans or the Revolving Loan Commitment shall be
unlimited (a "REFINANCING INCREMENTAL FACILITY"), PROVIDED that the amount of
any Refinancing Incremental Facility shall be limited to the principal amount,
accrued interest, fees and premiums, if any, payable with respect to the Loans
or the Revolving Loan Commitment being refinanced, and any costs and expenses
incurred to effect any such refinancing. Any repayment of the Term A Loans or
the Term B Loans, as applicable, from the proceeds of an Incremental Facility
shall be applied in the direct order of maturity of
54
the remaining scheduled repayments set forth in SECTION 2.6, and any repayment
of the Revolving Loans, if applicable, shall reduce the Revolving Loan
Commitments in an amount equal to such repayment. A Non-Refinancing Incremental
Facility (i) may be in the form of a revolving or a term credit facility and may
be structured as an institutional tranche, (ii) may be used to increase the
amount of any of the Commitments hereunder, provided that, in the case of
Incremental Facility Loans that are term loans, the amount of such Incremental
Facility Loans is added on a pro rata basis to the remaining scheduled
amortization of the Term Loans, and (iii) shall not have an Incremental Facility
Maturity Date earlier than six (6) months after the Term B Loan Maturity Date,
unless such Incremental Facility is used to increase the amount of any of the
Commitments hereunder. A Refinancing Incremental Facility (i) shall not have an
Incremental Facility Maturity Date earlier than the Maturity Date for the Loans
being refinanced with the proceeds of such Refinancing Incremental Facility,
(ii) shall not have an Applicable Margin with respect any Advances thereunder in
excess of the Applicable Margin applicable to Advances of the Loans being
refinanced with the proceeds of such Refinancing Incremental Facility, and (iii)
other than any extensions of the Maturity Date or reductions in the Applicable
Margins with respect thereto, shall be made on the same terms and conditions
applicable to the Loans being refinanced with the proceeds of such Refinancing
Incremental Facility. The Incremental Facility Commitments shall be governed by
this Agreement and the other Loan Documents and be subject to terms and
conditions not more restrictive than those set forth for the Loans herein and
therein. None of the Lenders shall be required to issue an Incremental Facility
Commitment and the decision of any Lender to issue or not issue an Incremental
Facility Commitment to the Borrower shall be at such Lender's sole discretion.
Persons not then Lenders may be included as Lenders having Incremental Facility
Commitments with the written approval, not to be unreasonably withheld, of the
Borrower and the Lead Arrangers. The terms and conditions in this SECTION 2.15
may be amended with the consent of the Majority Lenders and the Borrower, except
to the extent that a specific Lender's consent is otherwise required with
respect to an issuance by such Lender of any Incremental Facility Commitment.
(b) Prior to the effectiveness of any Incremental Facility
Commitment, the Borrower shall (i) deliver to the Administrative Agent and the
Lenders a written notice (each a "NOTICE OF INCREMENTAL FACILITY COMMITMENT"),
in form and substance reasonably satisfactory to the Administrative Agent,
setting forth terms and provisions with respect to interest rates and scheduled
amortization with respect to the proposed Incremental Facility and (ii) provide
calculations to the Credit Parties, which shall be in form and substance
reasonably satisfactory to the Lead Arrangers and which shall demonstrate the
Borrower's pro forma compliance with the Financial Covenants after giving effect
to such Incremental Facility.
(c) No Non-Refinancing Incremental Facility shall by itself result
in any reduction of the Revolving Loan Commitment, the Term A Loan Commitment or
the Term B Loan Commitment or of the Commitment Ratios of any Lender issuing
such Incremental Facility Commitment.
(d) Advances of the Incremental Facility Loans (i) subject to
SECTION 2.15(A), shall bear interest at the Base Rate or the Eurodollar Rate or
such other rate agreed to by the Lenders making such Advances; (ii) subject to
SECTION 2.15(A), shall be repaid as agreed to by the Borrower and the Lenders
making such Advances; (iii) shall for all purposes be Obligations hereunder and
under the Loan Documents; (iv) upon the request of any Incremental Facility
Lender, shall be represented by an Incremental Facility Note; and (v) shall rank
pari passu with the Loans for purposes of SECTIONS 2.11 and 10.2 and with
respect to the Collateral
55
(unless the applicable Incremental Facility Lender shall otherwise agree in
writing to have its Incremental Facility Loans be junior to the Loans). To the
extent that the interest rate applicable to a Non-Refinancing Incremental
Facility is greater than the Applicable Margin for the Term B Loans by 0.50% or
more, the Applicable Margin for the Term B Loans shall be automatically
increased to an amount which is 0.50% less than the interest rate for such
Non-Refinancing Incremental Facility.
(e) Incremental Facility Loans shall be requested by the Borrower
pursuant to a request (which shall be substantially in the form of a Request for
Advance) delivered in the same manner as a Request for Advance, but shall be
funded pro rata only by those Lenders that hold the Incremental Facility
Commitments.
ARTICLE 3 - GUARANTEE
Section 3.1 GUARANTEE. Each of Holdco and Intermediate Holdco (if any)
hereby unconditionally and jointly and severally guarantees to the Credit
Parties and their respective permitted successors and assigns and the subsequent
holders of the Obligations (including, without limitation, any interest on the
Loans accruing after the filing of a petition initiating any Insolvency
Proceeding with respect to Holdco, any Intermediate Holdco, the Borrower or any
Restricted Subsidiary, whether or not such interest accrues or is recoverable
against any such Person after the filing of such petition for purposes of the
Bankruptcy Code or is an allowed claim in such proceeding), irrespective of the
validity and enforceability of this Agreement (other than this Article 3), the
Notes or the other Loan Documents or the Obligations of the Borrower or any of
the Guarantors hereunder or thereunder, the value or sufficiency of any
Collateral or any other circumstance that might otherwise affect the liability
of a guarantor, that: (i) the principal of and interest on the Loans, the Notes
and all other Obligations of the Borrower and the Guarantors to the Credit
Parties under this Agreement, the Notes and the other Loan Documents shall be
promptly paid in full when due, whether at stated maturity, by acceleration or
otherwise, in accordance with the terms hereof and thereof; and (ii) in case of
any extension of time of payment or renewal of any of the Loans, any Notes or
any of such other Obligations, the same shall be promptly paid in full when due
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The foregoing guaranty is a guaranty of
payment and not of collection. Failing payment when due of any amount so
guaranteed for whatever reason, Holdco and Intermediate Holdco (if any) will be
jointly and severally obligated to pay the same immediately.
Section 3.2 WAIVERS AND RELEASES. Each of Holdco and Intermediate Holdco
(if any) hereby waives notice of, and consents to, any extension of time of
payment, renewals, releases of collateral, delays in obtaining or realizing upon
or failures to obtain, perfect, or maintain perfection of, or realize upon
collateral or other indulgence from time to time granted by any of the Credit
Parties in respect of this Agreement, the Notes or any other Loan Document.
Until the Obligations have been paid in full in cash or otherwise satisfied to
the satisfaction of the Credit Parties, each of Holdco and Intermediate Holdco
(if any) hereby releases the Borrower from all, and agrees not to assert or
enforce (whether by or in a legal or equitable proceeding or otherwise) any,
"claims" (as defined in 11 U.S.C. ss. 101(4)), whether arising under Applicable
Law or otherwise, to which Holdco or any Intermediate Holdco is or would be
entitled by virtue of its obligations hereunder, any payment made pursuant
hereto or the exercise by the Credit Parties of their rights with respect to any
Collateral, including any such claims to which Holdco or any Intermediate Holdco
may be entitled as a result of any right of subrogation, exoneration or
56
reimbursement. To the extent that the Borrower may not be released by Holdco or
any Intermediate Holdco under this Article 3, each of Holdco and Intermediate
Holdco (if any) agrees that, until the Obligations have been paid in full in
cash or otherwise satisfied to the satisfaction of the Credit Parties, it shall
not be entitled to any right of subrogation, exoneration, reimbursement or
contribution in respect of any Obligations guaranteed hereby. With respect to
this Agreement and the Notes, each of Holdco and Intermediate Holdco (if any)
hereby waives presentment, protest, demand of payment, notice of dishonor and
all other notices and demands whatsoever. Each of Holdco and Intermediate Holdco
(if any) further agrees that, as between Holdco or any Intermediate Holdco, on
the one hand, and the Credit Parties, on the other hand, (i) the maturity of the
Obligations guaranteed hereby may be accelerated as provided in SECTION 10.2 for
the purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
such Obligations as provided in SECTION 10.2, such Obligations (whether or not
otherwise due and payable) shall forthwith become due and jointly and severally
payable by Holdco and any Intermediate Holdco, for purposes of this guarantee.
The Obligations of Holdco and Intermediate Holdco (if any) under this Article 3
shall be automatically reinstated if and to the extent that for any reason any
payment by or on behalf of the Borrower is rescinded or must otherwise be
restored by any holder of any of the Obligations guaranteed hereunder, whether
as a result of any Insolvency Proceeding with respect to Holdco, any
Intermediate Holdco, the Borrower or any of its Restricted Subsidiaries or
otherwise , and each of Holdco and Intermediate Holdco (if any) agrees that it
will jointly and severally indemnify the Credit Parties on demand for their
out-of-pocket costs and expenses (including, without limitation, reasonable fees
and expenses of counsel) incurred by the Credit Parties in connection with such
rescission or restoration.
Section 3.3 MISCELLANEOUS.
(a) Upon the bankruptcy or winding up or other distribution of
assets of the Borrower or any of its Restricted Subsidiaries or of any surety or
guarantor for any of Obligations of the Borrower to the Credit Parties, or any
of them, the rights of the Credit Parties against Holdco or any Intermediate
Holdco shall not be affected or impaired by the omission of any Credit Party to
prove its claim, or to prove its full claim, and the Collateral Agent may prove
such claims as it sees fit and may refrain from proving any claim and in its
discretion may value as it sees fit or refrain from valuing any security held by
it without in any way releasing, reducing or otherwise affecting the liability
to any Credit Party of Holdco or any Intermediate Holdco.
(b) Each of Holdco and Intermediate Holdco (if any) absolutely,
unconditionally and irrevocably waives any and all right to assert any
defense, set-off, counterclaim or cross-claim of any nature whatsoever with
respect to this Article 3 or the obligations of Holdco or any Intermediate
Holdco hereunder or the obligations of any other Person or party (including,
without limitation, the Borrower) relating to this Article 3 or the
obligations of any other guarantor with respect to the Obligations (other than
payment in full) in any action or proceeding brought by any Credit Party to
collect the Obligations or any portion thereof, or to enforce the obligations
of Holdco or any Intermediate Holdco under this Article 3.
(c) The Credit Parties, or any of them, may from time to time,
without exonerating or releasing Holdco or any Intermediate Holdco in any way
under this Guarantee, (i) release, discharge, abandon or otherwise deal with or
fail to deal with any guarantor or surety of
57
the Guaranteed Obligations or any security or securities therefor or any part
thereof now or hereafter held by the Administrative Agent or (ii) amend, modify,
extend, accelerate or waive in any manner any of the provisions, terms, or
conditions of the Loan Documents, all as they may consider expedient or
appropriate in their sole discretion or (iii) act or fail to act in any manner
referred to in this Article 3 without regard to whether such action or inaction
may deprive Holdco or any Intermediate Holdco of its right to subrogation
against the Borrower to recover full indemnity for any payments made pursuant to
this Article 3. Without limiting the generality of this Article 3, it is
understood that the Credit Parties may, without exonerating or releasing Holdco
or any Intermediate Holdco give up, or modify or abstain from perfecting or
taking advantage of any security for the Obligations and accept or make any
compositions or arrangements, and realize upon any security for the Obligations
when, and in such manner, as such Person may deem expedient, all without notice
to Holdco or any Intermediate Holdco.
(d) If a claim is ever made upon the Credit Parties for the
repayment or recovery of any amount or amounts received by such Person in
payment of any of the Obligations and such Person repays all or part of such
amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such Person or any of its property,
or (ii) any settlement or compromise of any such claim effected by such Person
with any such claimant, including the Borrower, then in such event Holdco and
Intermediate Holdco (if any) shall be and remain obligated to such Person
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by such Person.
(e) Each of Holdco and Intermediate Holdco (if any) expressly
represents and acknowledges that any financial accommodations by the Credit
Parties, or any of them, to the Borrower, including, without limitation, the
making of the Loans are and will be of direct interest, benefit and advantage to
Holdco and Intermediate Holdco (if any).
(f) Regardless of whether any proposed guarantor or any other
Person shall become in any other way responsible to the Credit Parties, or any
of them, for or in respect of the Obligations or any part thereof, and
regardless of whether or not any Person now or hereafter responsible to the
Credit Parties, or any of them, for the Obligations or any part thereof, whether
under this Article 3 or otherwise, shall cease to be so liable, each of Holdco
and Intermediate Holdco (if any) hereby declares and agrees that the guarantee
set forth in this Article 3 shall be a joint and several obligation, shall be a
continuing guaranty and shall be operative and binding until the Obligations
shall have been indefeasibly paid or performed in full to the satisfaction of
the Credit Parties and the Credit Parties shall be under no further obligation
to extend any additional credit under this Agreement.
(g) The creation or existence from time to time of Obligations
in excess of the amount committed to or outstanding on the Agreement Date is
hereby authorized, without notice to Holdco or any Intermediate Holdco, and
shall in no way impair or affect this Article 3 or the rights of the Credit
Parties herein. It is the intention of each of Holdco, Intermediate Holdco (if
any) and the Credit Parties that Holdco's and any Intermediate Holdco's
obligations hereunder shall be, but not in excess of, the Maximum Guaranteed
Amount (as herein defined). The "Maximum Guaranteed Amount" with respect to each
of Holdco and Intermediate Holdco (if any) shall mean the maximum amount which
could be paid by such Person without rendering the guarantee provided for in
this Article 3 void or voidable as would otherwise be held or determined by a
court of competent jurisdiction in any action or proceeding involving
58
any state or Federal bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to the insolvency of
debtors.
ARTICLE 4 - CONDITIONS PRECEDENT
Section 4.1 CONDITIONS PRECEDENT TO INITIAL ADVANCE OF THE LOANS AND TO
THE ISSUANCE OF THE INITIAL LETTER OF CREDIT. The obligation of the Lenders to
undertake their respective Commitments and to make the initial Advance of the
Loans, and of the Issuing Bank to issue the initial Letter of Credit, is subject
to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the
following (with copies for each of the Lenders which have requested same), in
form and substance reasonably satisfactory to the Arrangers and each of the
Lenders, as applicable:
(i) this duly executed Agreement;
(ii) the duly executed Notes;
(iii) the duly executed Borrower's Pledge Agreement,
together with appropriate original stock certificates and undated stock powers
with respect thereto executed in blank;
(iv) the duly executed Borrower Security Agreement;
(v) the loan certificate of the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent, including a
certificate of incumbency with respect to each Authorized Signatory of the
Borrower, together with the following items: (A) a copy of the certificate of
incorporation of the Borrower, certified to be complete and correct by the
Secretary of State of the State of Delaware, and a complete and correct copy of
the by-laws of the Borrower; (B) a certificate of good standing for the Borrower
issued by the Secretary of State of Delaware; and (C) a true, complete and
correct copy of the resolutions of the board of directors of the Borrower,
authorizing the Borrower to execute, deliver and perform this Agreement and the
other Loan Documents to which it is a party;
(vi) the duly executed Subsidiary Guaranty;
(vii) the duly executed Subsidiary Security Agreement;
(viii) the duly executed Subsidiary Pledge Agreement,
together with appropriate original stock certificates and undated stock powers
with respect thereto executed in blank;
(ix) a loan certificate from each Guarantor, in form and
substance reasonably satisfactory to the Administrative Agent, including a
certificate of incumbency with respect to each Authorized Signatory of such
Guarantor, together with the following items: (A) a copy of the certificate or
articles of incorporation, certificate of limited partnership or certificate of
organization of such Guarantor, certified to be complete and correct by the
Secretary of State of the state of such Guarantor's organization; (B) a
certificate of good standing for such Guarantor issued by the Secretary of State
or similar state official in the state in
59
which such Guarantor is organized; (C) a complete and correct copy of the
by-laws, partnership agreement or limited liability company or operating
agreement of such Guarantor; and (D) a complete and correct copy of the
resolutions of the board of directors, or other appropriate entity, of such
Guarantor authorizing such Guarantor to execute, deliver and perform the Loan
Documents to which it is a party;
(x) the duly executed Holdco Pledge Agreement, together
with appropriate original stock certificates and undated stock powers with
respect thereto executed in blank;
(xi) the duly executed Intellectual Property Security
Agreement, together with appropriate filing coversheets;
(xii) the duly executed Nextel Intercreditor Notice;
(xiii) copies of insurance binders or certificates covering
the assets of the Borrower and its Restricted Subsidiaries, and otherwise
meeting the requirements of SECTION 6.5;
(xiv) a legal opinion, dated as of the Agreement Date, of
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, as counsel to Holdco, the Borrower and
its Restricted Subsidiaries in connection with the transactions contemplated by
this Agreement and the other Loan Documents, addressed to the Credit Parties, in
form and substance reasonably satisfactory to the Lead Arrangers and their
counsel;
(xv) a duly executed Request for Advance for the initial
Advance of the Loans;
(xvi) copies of all consents of any Person, and filings
with any Governmental Authority made or obtained in connection with the
transactions contemplated by this Agreement and the other Loan Documents;
(xvii) a duly executed payoff letter with respect to the
Existing Credit Agreement, in form and substance reasonably satisfactory to the
Lead Arrangers and their counsel, together with recordable Lien releases with
respect to any Liens thereunder upon the assets of Holdco, the Borrower and its
Restricted Subsidiaries, and evidence that the Existing Credit Agreement shall
have been repaid in full with proceeds of the Loans; and
(xviii) a duly executed Lien termination agreement and
recordable Lien releases with respect to any Liens which are not Permitted Liens
hereunder upon the assets of the Borrower and its Restricted Subsidiaries, and
with respect to any other Indebtedness which is not Permitted Debt hereunder.
b) The Administrative Agent shall have received the documentation
that it is required to obtain from the Borrower and the Guarantors under Section
326 of the USA PATRIOT ACT (P.L. 107-56, 115 Stat. 272 (2001) and under any
other provision of the Patriot Act, the Bank Secrecy Act (P.O. 91-508, 84 Stat.
1118 (1970) or any regulations under the Bank Secrecy Act or the Patriot Act
that contain document collection requirements that apply to the Administrative
Agent.
60
(c) The Lead Arrangers shall have received evidence satisfactory
to them that all Necessary Authorizations to the extent relating to any Towers
of the Borrower and its Restricted Subsidiaries (other than any Towers that do
not constitute Material Towers), and all necessary consents to the execution,
delivery and performance by the Borrower of this Agreement and the other Loan
Documents to which it is a party and by Holdco and the Restricted Subsidiaries
of the Loan Documents to which they are parties, have been obtained or made, are
in full force and effect and are not subject to any pending or threatened
reversal or cancellation, and the Administrative Agent shall have received a
certificate of an Authorized Signatory of the Borrower so stating.
(d) The Credit Parties shall receive payment of all fees and
expenses due and payable on the Agreement Date in respect of the transactions
contemplated hereby.
(e) The Lead Arrangers shall have received the Borrower's
financial projections, after giving effect to the transactions contemplated by
this Agreement and the other Loan Documents on a fiscal year basis through the
Term B Loan Maturity Date (together with any updates and revisions thereof, the
"PROJECTIONS"), and in the event of any change in circumstances that in the
reasonable judgment of the Lead Arrangers would materially affect the
Projections, any revisions of such Projections requested by the Lead Arrangers,
in form and substance reasonably satisfactory to the Lead Arrangers.
(f) The Lead Arrangers shall have received a certificate of a
Financial Officer of the Borrower, in substantially the form of the Compliance
Certificate required to be delivered under SECTION 7.3, demonstrating, on a pro
forma basis as of the Agreement Date and after giving effect to the initial
Advance of the Loans hereunder, that the Borrower is in compliance with each of
the Financial Covenants.
Section 4.2 CONDITIONS PRECEDENT TO EACH ADVANCE. The obligation of the
Lenders to make each Advance (including the initial Advance hereunder, but
excluding any Advance the proceeds of which are to reimburse any Issuing Bank
for amounts drawn under a Letter of Credit) is subject to the fulfillment of
each of the following conditions immediately prior to or contemporaneously
with such Advance:
(a) All of the representations and warranties made by or with
respect to Holdco, any Intermediate Holdco, the Borrower and its Restricted
Subsidiaries, or any of them, under this Agreement and the other Loan Documents,
which, pursuant to SECTION 5.2, are made at and as of the time of such Advance,
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 such Advance.
(b) There shall not exist, on the date of the making of such
Advance and after giving effect to the proceeds of such Advance, a Default or
Event of Default hereunder, and the Administrative Agent shall have received a
Request for Advance signed by an Authorized Signatory of the Borrower so
certifying, which Request for Advance shall also (i) certify the Borrower's
compliance with the Financial Covenants and (ii) provide calculations
demonstrating the Borrower's compliance with SECTION 9.1 after giving effect to
such Advance.
Section 4.3 CONDITIONS PRECEDENT TO ISSUANCE OF EACH LETTER OF CREDIT. The
obligation of any Issuing Bank to issue any Letter of Credit hereunder is
subject to the prior fulfillment of each of the following conditions:
61
(a) All of the representations and warranties made by or with
respect to Holdco, any Intermediate Holdco, the Borrower and its Restricted
Subsidiaries, or any of them, under this Agreement and the other Loan Documents,
which, pursuant to SECTION 5.2, are made at and as of the time of the issuance
of such Letter of Credit, shall be true and correct at such time in all material
respects, both before and after giving effect to the issuance of such Letter of
Credit; and
(b) There shall not exist, on the date of the issuance of such
Letter of Credit and after giving effect thereto, a Default or Event of Default
hereunder, and the Administrative Agent shall have received a Request for
Issuance of Letter of Credit so certifying.
ARTICLE 5 - Representations and Warranties
Section 5.1 REPRESENTATIONS AND WARRANTIES. Each of Holdco, Intermediate
Holdco (if any) and the Borrower, for itself and on behalf of each of its
Restricted Subsidiaries, hereby agrees, represents and warrants in favor of
each of the Credit Parties that:
(a) ORGANIZATION; OWNERSHIP; POWER; QUALIFICATION. Each of Holdco,
Intermediate Holdco (if any), the Borrower and each of its Restricted
Subsidiaries is a corporation or other legal entity duly organized, validly
existing and in good standing under the laws of the state of its incorporation
or organization, has the corporate or other organizational power and authority
to own or lease and operate its properties and to carry on its business as now
being and hereafter proposed to be conducted. Each of Holdco, Intermediate
Holdco (if any), the Borrower and each of its Restricted 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 businesses
requires such qualification or authorization except where failure to be so
qualified, in good standing or authorized could not reasonably be expected to
have, individually or in the aggregate, a Materially Adverse Effect.
(b) AUTHORIZATION; ENFORCEABILITY. The Borrower has the corporate
power and has taken all necessary action, corporate or otherwise, to authorize
it to borrow hereunder, to execute, deliver and perform this Agreement and each
of the other Loan Documents to which it is a party in accordance with their
respective terms, and to consummate the transactions contemplated hereby and
thereby. Each of Holdco and Intermediate Holdco (if any) has the corporate power
and has taken all necessary action, corporate or otherwise, to authorize it to
execute, deliver and perform this Agreement and each of the other Loan Documents
to which it is a party in accordance with their respective terms, and to
consummate the transactions contemplated hereby and thereby. Each of the
Restricted Subsidiaries has the corporate or other organizational power and has
taken all necessary action, corporate or otherwise, to authorize it to execute,
deliver and perform each of the Loan Documents to which it is a party in
accordance with their respective terms and to consummate the transactions
contemplated by this Agreement and by such Loan Documents. This Agreement, and
each of the other Loan Documents to which any of Holdco, Intermediate Holdco (if
any), the Borrower or any of its Restricted Subsidiaries is a party, has been
duly executed and delivered by Holdco, Intermediate Holdco (if any), the
Borrower or such Restricted Subsidiary, as the case may be, and is a legal,
valid and binding obligation of Holdco, Intermediate Holdco (if any), the
Borrower or such Restricted Subsidiary, as applicable, enforceable against
Holdco, Intermediate Holdco (if any), the Borrower or such Restricted
Subsidiary, as the case may be, in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy,
62
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally and by the application of
general equitable principles.
(c) EQUITY INTERESTS, CORPORATE ORGANIZATION AND RELATED MATTERS.
Holdco owns, and after the formation of Super-Holdco, Intermediate Holdco owns
or will own, all of the issued and outstanding Equity Interests of the Borrower,
and as of the Agreement Date, except as set forth on SCHEDULE 5.1(C), the
Borrower owns all of the issued and outstanding Equity Interests of each of its
Restricted Subsidiaries and, except as provided in any of the Loan Documents,
has the unrestricted right to vote such Equity Interests owned by it. As of the
Agreement Date, the Borrower does not have any Subsidiaries other than the
Subsidiaries listed on SCHEDULE 5.1(C), which Subsidiaries are identified on
such schedule as Restricted Subsidiaries, Unrestricted Subsidiaries and Foreign
Subsidiaries. All of the issued and outstanding Equity Interests of the Borrower
and its Restricted Subsidiaries have been duly authorized and validly issued and
are fully paid and nonassessable, and are free and clear of all Liens (except
for Permitted Liens). None of such Equity Interests has been issued in violation
of the Securities Act, or the securities, "Blue Sky" or other Applicable Laws of
any applicable jurisdiction. As of the Agreement Date, except as set forth on
SCHEDULE 5.1(C), neither the Borrower nor any of its Restricted Subsidiaries has
outstanding any stock or securities convertible into or exchangeable for any of
its Equity Interests, nor are there any preemptive or similar rights to
subscribe for or to purchase, or any other rights to subscribe for or to
purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments, or claims
of any character relating to, any of such Equity Interests or any stock or
securities convertible into or exchangeable for any of such Equity Interests. As
of the Agreement Date, except as set forth on SCHEDULE 5.1(C), neither the
Borrower nor any of its Restricted Subsidiaries is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any of
its Equity Interests or to register any of its Equity Interests, and except for
this Agreement and the other Loan Documents, there are no agreements restricting
the transfer of any Equity Interests of either the Borrower or any of its
Restricted Subsidiaries or restricting the ability of any Restricted Subsidiary
from making distributions, dividends or other Restricted Payments to the
Borrower. Except as set forth on SCHEDULE 5.1(c), within the five (5) year
period immediately preceding the Agreement Date, neither the Borrower nor any of
its Restricted Subsidiaries has changed its name nor has the Borrower nor any of
its Restricted Subsidiaries transacted business under any other name or trade
name.
(d) COMPLIANCE WITH OTHER LOAN DOCUMENTS AND CONTEMPLATED
TRANSACTIONS. The execution, delivery and performance by each of Holdco,
Intermediate Holdco (if any), the Borrower and each of its Restricted
Subsidiaries of this Agreement and each of the other Loan Documents to which it
is a party in accordance with their respective terms, and the consummation of
the transactions contemplated hereby and thereby, do not and will not (i) with
respect to any Material Towers, require any consent or approval, governmental or
otherwise, not already obtained, (ii) violate in any material respect any
Applicable Law respecting Holdco, any Intermediate Holdco, the Borrower or any
Restricted Subsidiary (including, without limitation, the Communications Act or
any rule, regulation or written policy of the FCC, the FAA or any other grantor
of a Necessary Authorization with respect to any Material Towers), (iii)
conflict with, result in a breach of, or constitute a default under the
certificate or articles of incorporation, by-laws or other governing documents
of Holdco, any Intermediate Holdco, the Borrower or any Restricted Subsidiary,
or, except as set forth on SCHEDULE 5.1(H), in any material respect under
63
any material indenture, agreement, or other instrument, to which Holdco, any
Intermediate Holdco, the Borrower or any Restricted Subsidiary is a party or by
which any of them or their respective properties may be bound, (iv) subject to
the filing of post-consummation name change notices with the FCC, conflict with,
result in a breach of, or constitute a default or violation of, the terms and
conditions of any Necessary Authorization with respect to any Material Towers,
or (v) result in or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by Holdco, any
Intermediate Holdco, the Borrower or any of its Restricted Subsidiaries, except
for Permitted Liens.
(e) BUSINESS. The Borrower and each of its Restricted Subsidiaries
are engaged in the Tower Operations and in the Other Operations, and in business
activities related thereto.
(f) NECESSARY AUTHORIZATIONS, ETC. The Borrower and each of its
Restricted Subsidiaries have obtained all Necessary Authorizations, except for
such Necessary Authorizations the failure to obtain which would not reasonably
be expected to have, individually or in the aggregate, a Materially Adverse
Effect, and all of such Necessary Authorizations are in full force and effect,
and the Borrower and each of its Restricted Subsidiaries are in compliance in
all material respects with the provisions thereof. Except as would not
reasonably be expected to have, individually or in the aggregate, a Materially
Adverse Effect, (i) no Necessary Authorization is the subject of any pending or,
to the best of the Borrower's knowledge, threatened attack or revocation, and
(ii) the Borrower is not aware of any fact or condition which would constitute
grounds for any governmental or other licensing authority (including, without
limitation, the FCC and the FAA) to deny any pending application for any
Necessary Authorization, to suspend, revoke, modify or annul any Necessary
Authorizations or to impose any financial penalty on the Borrower or any of its
Restricted Subsidiaries.
(g) COMPLIANCE WITH LAW; ABSENCE OF DEFAULT. Except where such
violation or the failure to be in compliance would not reasonably be expected to
have, individually or in the aggregate, a Materially Adverse Effect, each of
Holdco, Intermediate Holdco (if any), the Borrower and each of its Restricted
Subsidiaries, and the construction, ownership and operation of the Towers and
the conduct of the Tower Operations by the Borrower and its Restricted
Subsidiaries, are in compliance with all, and do not violate any, (i) Applicable
Laws (including, without limitation, all rules and regulations promulgated by
the FCC and/or the FAA) and/or (ii) provisions of the certificates or articles
of incorporation, by-laws and other governing documents of Holdco, any
Intermediate Holdco, the Borrower or any of its Restricted Subsidiaries. No
event has occurred or failed to occur (including, without limitation, any matter
which could create a Default or Event of Default hereunder by cross-default)
which has not been remedied or waived, the occurrence or non-occurrence of which
constitutes, or with the passage of time or giving of notice or both would
constitute, an Event of Default. None of Holdco, Intermediate Holdco (if any),
the Borrower or any of its Restricted Subsidiaries is a party to or bound by any
contract or agreement continuing after the Agreement Date, or bound by any
Applicable Law, that could reasonably be expected to have, individually or in
the aggregate, a Materially Adverse Effect.
(h) TITLE TO ASSETS. The Borrower and its Restricted Subsidiaries
each has good and legal title to, or a valid leasehold interest in, all of its
respective material assets, and none of such assets is subject to any Liens,
except for Permitted Liens and Liens securing
64
the Existing Credit Agreement which will be terminated concurrently with the
initial Advance of the Loans under this Agreement. Except for financing
statements evidencing Permitted Liens, no financing statement under the Uniform
Commercial Code as in effect in any jurisdiction and no other filing which names
Holdco, any Intermediate Holdco, the Borrower or any of its Restricted
Subsidiaries as debtor, or which covers or purports to cover any of the assets
of the Borrower or any of its Restricted Subsidiaries, is currently effective
and on file in any state or other jurisdiction, and none of Holdco, Intermediate
Holdco (if any), the Borrower or any of its Restricted Subsidiaries has signed
any such financing statement or filing or any security agreement authorizing any
secured party thereunder to file any such financing statement or filing. As of
the Agreement Date, except as set forth on SCHEDULE 5.1(H), none of Holdco, the
Borrower or any of its Restricted Subsidiaries is a party to any material
contract, instrument or agreement (including, without limitation, any of the
Necessary Authorizations) restricting the ability of Holdco, any Intermediate
Holdco, the Borrower or such Restricted Subsidiary, as applicable, to enter into
an agreement by which Holdco, any Intermediate Holdco, the Borrower or such
Restricted Subsidiary, as applicable, agrees that it shall not create, assume,
incur or permit to exist or be created, directly or indirectly, any Lien on its
assets.
(i) LITIGATION. As of the Agreement Date, except as set forth on
SCHEDULE 5.1(I), there is no material action, suit, application, complaint,
petition, revocation, proceeding or investigation, at law or in equity, or any
material order, decree or judgment, in effect or pending against, or, to the
best of the Borrower's knowledge, threatened against Holdco, the Borrower or any
of its Restricted Subsidiaries or any of their respective properties and assets
(including, without limitation, any Tower Assets) in any court or before any
arbitrator of any kind or before or by any governmental body (including, without
limitation, the FCC and/or the FAA). No action, suit, proceeding or
investigation, at law or in equity, or any material order, decree or judgment,
in effect or pending against, or, to the best of the Borrower's knowledge,
threatened against Holdco, any Intermediate Holdco, the Borrower or any of its
Restricted Subsidiaries or any of their respective properties and assets
(including, without limitation, any Tower Assets) in any court or before any
arbitrator of any kind or before or by any governmental body (including, without
limitation, the FCC and/or the FAA) (i) calls into question the validity of this
Agreement or any of the other Loan Documents, (ii) could reasonably be expected
to have a Materially Adverse Effect, or (iii) could reasonably be expected to
restrict in any material manner the ownership or operation of any Material
Towers.
(j) TAXES. All federal and material state, local and other tax
returns (including information returns), or any extensions thereof, of Holdco,
any Intermediate Holdco, the Borrower and each of its Restricted Subsidiaries
required by law to be filed have been duly filed and all federal and material
state, local and other taxes and impositions, including, without limitation,
withholding taxes, assessments and other governmental charges or levies required
to be paid by Holdco, any Intermediate Holdco, the Borrower or any of its
Restricted Subsidiaries or imposed upon Holdco, any Intermediate Holdco, the
Borrower or any of its Restricted Subsidiaries or any of their respective
properties, income, profits or assets, which are due and payable, have been
paid, except any such taxes (i) the payment of which Holdco, any Intermediate
Holdco, the Borrower or any of its Restricted Subsidiaries is diligently
contesting in good faith by appropriate proceedings, (ii) for which reserves in
conformity with GAAP have been provided on the books of Holdco, any Intermediate
Holdco, the Borrower or the applicable Restricted Subsidiary, and (iii) as to
which no Lien, other than a Permitted Lien, has attached and no foreclosure,
distraint, sale or similar proceedings have been commenced. The charges,
65
accruals and reserves on the books of Holdco, any Intermediate Holdco, the
Borrower and each of its Restricted Subsidiaries in respect of any taxes or
other governmental charges are in conformity with GAAP.
(k) FINANCIAL INFORMATION. The Borrower has furnished or caused
to be furnished to the Credit Parties (i) audited financial statements for
Holdco on a consolidated basis with its Subsidiaries which are complete and
correct in all material respects and present fairly in all material respects in
accordance with GAAP the financial position of Holdco and its Subsidiaries on
and as at December 31, 2003 and the results of operations for the period then
ended and (ii) unaudited financial statements for Holdco on a consolidated basis
with its Subsidiaries which are complete and correct in all material respects
and present fairly in all material respects in accordance with GAAP (subject to
normal year end adjustments and the absence of footnotes) the financial position
of Holdco and its Subsidiaries on and as at September 30, 2004 and the results
of operations for the period then ended (the "FINANCIAL STATEMENTS"). As of the
Agreement Date, none of Holdco, the Borrower or any of its Restricted
Subsidiaries has any material liabilities, contingent or otherwise, other than
(A) as disclosed in the Financial Statements, (B) as set forth or referred to in
this Agreement, (C) those which have been incurred in the ordinary course of
business since September 30, 2004, or (D) those permitted pursuant to SECTION
8.1. The Projections represent the Borrower's reasonable estimate of projected
future operations as of the Agreement Date, and as of the Agreement Date, to the
best of the Borrower's knowledge, there exist no facts or circumstances which
the Borrower believes could be reasonably likely to cause a materially adverse
change in the Projections.
(l) NO ADVERSE CHANGE. Since December 31, 2003, there has
occurred no event which has had or which could reasonably be expected to have a
Materially Adverse Effect.
(m) ERISA. Each Plan maintained, or contributed to, by the
Borrower or any of its Restricted Subsidiaries, or any of their ERISA
Affiliates, as of the Agreement Date is listed on SCHEDULE 5.1(M). As of the
Agreement Date, each of such Plans is in compliance in all material respects
with its terms, ERISA and the Code. Each of such Plans that is a Pension Plan is
in compliance in all material respects with its terms, ERISA and the Code. None
of such Plans has a material "accumulated funding deficiency" within the meaning
of ERISA or the Code. Neither the Borrower nor any of its Restricted
Subsidiaries nor any of their respective ERISA Affiliates has incurred any
material liability to the PBGC (other than the payment of premiums imposed by
Title IV of ERISA) in connection with any such Plan. As of the Agreement Date,
the assets of each such Plan that is a Pension Plan are sufficient to provide
the benefits under such Plan if such Plan were terminated on the date hereof. No
Reportable Event has occurred with respect to any such Plan. No party in
interest, fiduciary, trustee or administrator of any such Plan or trust created
thereunder has engaged in a `prohibited transaction' (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would subject the
Borrower, any of its Restricted Subsidiaries or any of their respective ERISA
Affiliates to a material tax on "prohibited transactions" imposed by Section
4975 of the Code. No party in interest, fiduciary, trustee or administrator of
any such Plan or trust created thereunder has committed a material breach of its
fiduciary duty or knowingly participated in any violation of ERISA which would
subject the Borrower, any of its Restricted Subsidiaries or any of their
respective ERISA Affiliates to a material penalty under Section 502 of ERISA. As
of the Agreement Date, none of the Borrower, any of its Restricted Subsidiaries
or any of their respective ERISA Affiliates is a participant in or obliged to
make any payment to a
66
Multiemployer Plan. As of the Agreement Date, except as disclosed in any
financial statements under Financial Accounting Standard 106 or required by
Sections 601 through 609 of ERISA, neither the Borrower nor any of its
Restricted Subsidiaries has made any material oral or written commitments to
provide post-retirement health or life insurance coverage with respect to any
former or current employee. The Borrower and its Restricted Subsidiaries and
ERISA Affiliates have properly classified individuals providing services to the
Borrower or any of its Restricted Subsidiaries or ERISA Affiliates as employees
or non-employees, except to the extent that a misclassification would not result
in a Materially Adverse Effect.
(n) COMPLIANCE WITH REGULATIONS U AND X. Neither the Borrower nor
any of its Restricted Subsidiaries is engaged principally in, or has as one of
its important activities, the business of purchasing or carrying, or extending
credit for the purpose of purchasing or carrying, any margin stock within the
meaning of Regulations U and X of the Board of Governors of the Federal Reserve
System.
(o) INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT.
None of Holdco, Intermediate Holdco (if any), the Borrower or any of its
Restricted Subsidiaries is required to register under the provisions of the
Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Borrower of this Agreement, the making of the Loans or the
issuance of any 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 or authority
pursuant to any provisions of such Act. None of Holdco, Intermediate Holdco (if
any), the Borrower or any of its Restricted Subsidiaries is a "public utility
holding company" within the meaning of the Public Utility Holding Company Act of
1935, as amended.
(p) SECURITIES LAWS. Except as would not reasonably be expected
to have, individually or in the aggregate, a Materially Adverse Effect, Holdco,
Intermediate Holdco (if any), the Borrower, each of its Restricted Subsidiaries
and, to the best knowledge of Holdco, any Intermediate Holdco, the Borrower and
its Restricted Subsidiaries, any underwriters, sales agents, representatives or
brokers representing or acting on behalf of Holdco, any Intermediate Holdco, the
Borrower or any of its Restricted Subsidiaries, have complied with all federal
and state securities laws in connection with the offer and sale of stock or
other equity interests in Holdco, any Intermediate Holdco, the Borrower or any
of its Restricted Subsidiaries.
(q) INTELLECTUAL PROPERTY. The Borrower and each of its Restricted
Subsidiaries owns or possesses the valid right to use all material patents,
patent applications, patent, inventions, technology, trademark registrations
and applications, product designs, applications, processes, trademarks,
service marks, trade names, copyrights and rights in respect of the foregoing,
which are used or necessary for the conduct of its business as now conducted
or hereafter proposed to be conducted, without any known conflict with the
rights of others and free and clear of any Liens, other than Permitted Liens.
All such material United States issued patents, trademark registrations and
copyright registrations, and applications for any of the foregoing, are set
forth on SCHEDULE 5.1(Q). All such licenses and rights with respect to
material patents, trademarks, trademark rights, trade names, trade name
rights, service marks and copyrights are in full force and effect in all
material respects, and are not subject to any pending or, to the best
knowledge of the Borrower, threatened attack or revocation, in any case except
as would not be reasonably expected to have individually or in the aggregate,
a Materially Adverse Effect.
67
(r) ACCURACY AND COMPLETENESS OF INFORMATION. All information,
reports, prospectuses and other papers and data relating to Holdco, Intermediate
Holdco (if any), the Borrower or any of its Restricted Subsidiaries (other than
the Projections which are covered by item (k) above) furnished in writing by or
on behalf of Holdco, any Intermediate Holdco, the Borrower or any of its
Restricted Subsidiaries to any of the Credit Parties were, at the time
furnished, complete and correct in all material respects to the extent necessary
to give the Credit Parties true and accurate knowledge of the subject matter.
(s) AGREEMENTS WITH AFFILIATES AND MANAGEMENT AGREEMENTS. As of
the Agreement Date, except as set forth on SCHEDULE 5.1(S), neither the Borrower
nor any of its Restricted Subsidiaries has (i) any material written agreements
or binding arrangements of any kind with any Affiliate or (ii) any material
management or consulting agreements of any kind, not entered into in the
ordinary course of business.
(t) ENVIRONMENTAL MATTERS. Except as is described on SCHEDULE
5.1(T) or as, individually or in the aggregate, could not reasonably be expected
to have a Materially Adverse Effect:
(i) None of the Properties contains, in, on or under,
any Hazardous Materials except (A) in such quantities as required for the
conduct in the ordinary course of the Borrower's business or, to the best of the
Borrower's knowledge, the business of the fee owner of such Property, and then
only in compliance with applicable Environmental Laws, or (B) in amounts or
circumstances that do not give rise to material liability under Environmental
Laws.
(ii) The Borrower and its Restricted Subsidiaries are in
compliance with all applicable Environmental Laws, and there is no condition
which could interfere with the continued operation of any of the Properties in
compliance with Environmental Laws or impair the financial condition of the
Borrower.
(iii) Neither the Borrower nor any of its Restricted
Subsidiaries has received from any Governmental Authority or any other Person
any written complaint, notice of violation, alleged violation, investigation or
advisory action or notice of potential liability regarding matters of
environmental protection or permit compliance under applicable Environmental
Laws with regard to the Properties, and neither the Borrower nor any of its
Restricted Subsidiaries is aware that any Governmental Authority is
contemplating delivering to the Borrower or any of its Restricted Subsidiaries
any such notice. There is no condition or circumstance currently or with the
passage of time that could reasonably be expected to present the basis of any
such notice. There has been no pending or, to the Borrower's knowledge,
threatened complaint, notice of violation, alleged violation, investigation or
notice of potential liability under Environmental Laws with regard to any of the
Properties.
(iv) Hazardous Materials have not been generated, treated,
stored, disposed of, at, on or under any of the Properties in material violation
of Environmental Laws, or in a manner that could give rise to liability under
Environmental Laws nor have any Hazardous Materials been transported or disposed
of from any of the Properties to any other location in violation of
Environmental Laws nor in a manner that could reasonably be anticipated to give
rise to liability under Environmental Laws.
68
(v) Neither the Borrower nor any of its Restricted
Subsidiaries is a party to any governmental administrative actions or judicial
proceedings pending under any Environmental Law with respect to any of the
Properties, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to any of the
Properties.
(vi) There has been no release of Hazardous Materials into
the environment at or from any of the Properties, or arising from or relating to
the operations of the Borrower or any of its Restricted Subsidiaries, in
violation of Environmental Laws or in amounts that could give rise to liability
under Environmental Laws.
(u) PAYMENT OF WAGES; LABOR MATTERS. The Borrower and each of its
Restricted Subsidiaries are in compliance with the Fair Labor Standards Act, as
amended, in all material respects, and the Borrower and each of its Restricted
Subsidiaries have complied with all minimum and overtime wage requirements
applicable to their respective employees, except for any non-compliance that
could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. As of the Agreement Date, except as disclosed on
SCHEDULE 5.1(U), except as would not be reasonably expected to have,
individually or in the aggregate, a Materially Adverse Effect: (i) no labor
contract to which the Borrower or any of its Restricted Subsidiaries is a party
or is otherwise subject is scheduled to expire during the term of this
Agreement; (ii) neither the Borrower nor any of its Restricted Subsidiaries has,
within the two (2) year period immediately preceding the Agreement Date, taken
any action which would have constituted or resulted in a "plant closing" or
"mass layoff" within the meaning of the Federal Worker Adjustment and Retraining
Notification Act of 1988 or any similar applicable federal, state or local law,
and the Borrower does not have any reasonable expectation that it will incur any
material liability under such Act at any time during the term of this Agreement;
(iii) all of the operations of the Borrower and its Restricted Subsidiaries are
conducted in all material respects in compliance with all applicable rules and
regulations promulgated by the Occupational Safety and Health Administration of
the United States Department of Labor; (iv) neither the Borrower nor any of its
Restricted Subsidiaries is a party to any material labor dispute (other than any
immaterial disputes with the Borrower's or such Restricted Subsidiary's
employees as individuals and not affecting the Borrower's or such Restricted
Subsidiary's relations with any labor group or its workforce as a whole); and
(v) there are no pending or, to the Borrower's knowledge, threatened strikes or
walkouts relating to any labor contracts to which the Borrower or any of its
Restricted Subsidiaries is a party or is otherwise subject. As of the Agreement
Date, none of the employees of the Borrower or any of its Restricted
Subsidiaries is a party to any collective bargaining agreement with the Borrower
or any of its Restricted Subsidiaries.
(v) PRIORITY. The Security Interest is a valid and perfected first
priority (except for Permitted Liens) security interest in substantially all of
the Collateral in favor of the Administrative Agent, for the benefit of the
Credit Parties, securing, in accordance with the terms of the Security
Documents, the outstanding Obligations. The Collateral is not subject to any
Liens other than Permitted Liens. The Liens created by the Security Documents
are enforceable as security for the outstanding Obligations in accordance with
their terms with respect to the Collateral except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors' rights
generally and to the application of general equitable principles.
69
(w) INDEBTEDNESS. As of the Agreement Date, none of Holdco, the
Borrower or any of its Restricted Subsidiaries has outstanding any Indebtedness
except for Permitted Debt.
(x) INVESTMENTS. As of the Agreement Date, none of the Borrower or
any of its Restricted Subsidiaries owns any Equity Interests in, or has
outstanding loans or advances to, or guaranties of the obligations of, any
Person except as reflected in the Financial Statements, or disclosed on SCHEDULE
5.1(C) or SCHEDULE 5.1(X).
(y) MATERIAL CONTRACTS. SCHEDULE 5.1(Y) contains a complete list,
as of the Agreement Date, of each Material Contract to which the Borrower or any
of its Restricted Subsidiaries is a party. SCHEDULE 5.1(Y) further identifies,
as of the Agreement Date, each Material Contract which requires consent to the
granting of a Lien in favor of the Administrative Agent on the rights of the
Borrower or any of its Restricted Subsidiaries thereunder.
(z) SOLVENCY. As of the Agreement Date and after giving effect to
the transactions contemplated by this Agreement and the other Loan Documents,
(i) the property of the Borrower, at a fair valuation on a going concern basis,
will exceed its debt; (ii) the capital of the Borrower will not be unreasonably
small to conduct its business; and (iii) the Borrower will not have incurred
debts, or have intended to incur debts, beyond its ability to pay such debts as
they mature. For purposes of this SECTION 5.1(Z), "debt" means any liability on
a claim, and "claim" means (i) the right to payment, whether or not such right
is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, undisputed, legal, equitable, secured or unsecured, or (ii) the right
to an equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
(aa) REAL PROPERTY AND TOWER SITES. To the best of the Borrower's
knowledge, each of the material leases of the Borrower and its Restricted
Subsidiaries is valid, enforceable and in full force and effect. The Borrower or
a Restricted Subsidiary, as applicable, is the sole holder of the lessee's
interests under each lease to which it is a party and, except to the extent not
reasonably likely to have, individually or in the aggregate, a Materially
Adverse Effect, has the right to pledge and assign the same. Neither the
Borrower nor any of its Restricted Subsidiaries has made any pledge or
assignment of any of its rights under any such leases except pursuant to the
Security Documents and except for the Nextel Subordinated Lien, and there is no
default or condition which, with the passage of time or the giving of notice, or
both, would constitute a material default on the part of the Borrower or any of
its Restricted Subsidiaries or, to the best of the Borrower's knowledge, any
other party, under such leases with respect to any Material Towers.
Section 5.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date of each
Advance and on the date of issuance of each Letter of Credit, except to the
extent expressly applicable only to an earlier date or no longer true and
correct as a result of actions or changes in accordance with the terms hereof.
All representations and warranties made under this Agreement shall survive,
and not be waived by, the execution hereof by the Credit Parties, any
investigation or inquiry by any Credit Party, or the making of any Advance or
the issuance of any Letter of Credit under this Agreement.
70
ARTICLE 6 - GENERAL COVENANTS
So long as any of the Obligations (other than contingent indemnification
obligations) are outstanding and unpaid, or the Borrower shall have the right to
borrow hereunder (whether or not the conditions to borrowing have been or can be
fulfilled), or any Letter of Credit is outstanding (and not cash
collateralized), and unless the Majority Lenders, or such greater number of
Lenders as may be expressly provided herein, shall otherwise consent in writing:
Section 6.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS. Except as
permitted in SECTION 8.5, the Borrower will, and will cause each of its
Restricted Subsidiaries to:
(i) preserve and maintain its existence, rights,
franchises, licenses and privileges in the state of its incorporation or
organization and in each other state in which it operates a material part of its
business, including, without limitation, all Necessary Authorizations, except as
would not reasonably be expected to have, individually or in the aggregate, a
Materially Adverse Effect; and
(ii) 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 be qualified or authorized would reasonably be expected to have,
individually or in the aggregate, a Materially Adverse Effect.
Section 6.2 BUSINESS; COMPLIANCE WITH APPLICABLE LAW. The Borrower will,
and will cause each of its Restricted Subsidiaries to, engage solely in the
business of the Tower Operations, the Other Operations and in related business
activities. The Borrower will, and will cause each of its Restricted
Subsidiaries to, comply with the requirements of all Applicable Laws (including,
without limitation, all tower marking and lighting requirements of the FAA and
the FCC) except where the failure to so comply would not reasonably be expected
to have, individually or in the aggregate, a Materially Adverse Effect.
Section 6.3 MAINTENANCE OF PROPERTIES AND ASSETS. The Borrower will, and
will cause each of its Restricted Subsidiaries to, (a) maintain or cause to be
maintained in the ordinary course of business in good repair, working order and
condition (reasonable wear and tear excepted) all properties (including, without
limitation, all Towers) used in their respective businesses (whether owned or
held under lease), and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto except where the failure to do so would not materially
adversely affect or apply to any Material Towers, and (b) obtain and maintain
and preserve in full force and effect, and renew and extend as necessary, all
Material Contracts and all Necessary Authorizations with respect to the Towers
except where the failure to do so would not reasonably be expected to have,
individually or in the aggregate, a Materially Adverse Effect.
Section 6.4 ACCOUNTING METHODS AND FINANCIAL RECORDS. The Borrower will
maintain, on a consolidated basis with its Subsidiaries, a system of
accounting established and administered in accordance with GAAP consistently
applied, keep adequate records and books of account in which complete entries
will be made in accordance with such accounting principles consistently
applied and reflecting all transactions required to be reflected by such
accounting
71
principles, and keep accurate and complete records of the Collateral. The
Borrower and its Subsidiaries will maintain a fiscal year ending on December 31.
Section 6.5 INSURANCE. The Borrower will, and will cause each of its
Restricted Subsidiaries to:
(a) Maintain insurance, including, but not limited to, public
liability coverage insurance, from responsible companies in such amounts and
against such risks to the Borrower and each of its Restricted Subsidiaries as is
prudent and customary for Persons in the Tower Operations business (including,
without limitation, larceny, embezzlement, employee fidelity, and other criminal
misappropriation insurance and insurance against claims for personal or bodily
injury, death or property damage);
(b) Keep their respective assets (including, without limitation,
broadcast Towers, but excluding all other Towers and all motor vehicles) insured
by responsible companies against loss or damage by fire, theft, burglary,
pilferage, loss in transit, explosions and hazards insured against by extended
coverage, in amounts and scope of coverage which are prudent for the
communications tower industry, in accordance with industry standards, all
premiums thereon to be paid by the Borrower and its Restricted Subsidiaries;
(c) Require that each casualty and liability insurance policy for
the Borrower and its Restricted Subsidiaries provide for at least thirty (30)
days' prior written notice to the Administrative Agent of any termination of or
proposed cancellation or non-renewal of such policy, or material reduction in
coverage, and name the Administrative Agent (for the benefit of the Credit
Parties) as additional named loss payee to the extent of the Obligations and
additional named insured; and
(d) In the event of a casualty loss covered by the insurance of
the Borrower or any Restricted Subsidiary, Net Cash Proceeds of such insurance
of $10,000,000 or less paid in respect of such loss shall be paid directly to,
and may be retained by, the Borrower. Net Cash Proceeds of insurance in excess
of $10,000,000 shall be paid to the Administrative Agent and shall be applied to
repay the Loans to the extent set forth in SECTION 2.7(A) or SECTION 10.3, as
appropriate.
Section 6.6 PAYMENT OF TAXES AND CLAIMS. The Borrower will, and will cause
each of its Restricted Subsidiaries to, pay and discharge all material taxes,
including, without limitation, withholding taxes, assessments and governmental
charges or levies required to be paid by them or imposed upon them or their
income or profits or upon any properties belonging to them, prior to the date
on which penalties attach thereto, and all lawful claims for labor, materials
and supplies which, if unpaid, might become a Lien or charge upon any of their
properties; except that no such tax, assessment, charge, levy or claim need be
paid which is being diligently contested in good faith by appropriate
proceedings and for which reserves in conformity with GAAP shall have been set
aside on the appropriate books, but only so long as such tax, assessment,
charge, levy or claim does not become a Lien or charge other than a Permitted
Lien and no foreclosure, distraint, sale or similar proceedings shall have
been commenced. The Borrower will, and will cause each of its Restricted
Subsidiaries to, timely file all material information returns required by
federal, state or local tax authorities.
72
Section 6.7 VISITS AND INSPECTIONS. The Borrower will, and will cause
each of its Restricted Subsidiaries to, permit representatives of any Credit
Party at its expense, during normal business hours, upon reasonable advance
notice to the Borrower or such Restricted Subsidiary, as applicable, to (a)
visit and inspect the properties of the Borrower or such Restricted Subsidiary,
(b) inspect and make extracts from and copies of their respective books and
records, and (c) discuss with their respective principal officers their
respective businesses, assets, liabilities, financial positions, results of
operations and business prospects; PROVIDED, HOWEVER, that notwithstanding the
foregoing at any time after the occurrence and during the continuance of a
Default or Event of Default, any such visit or inspection by any Lead Arranger
shall be at the expense of the Borrower. The Borrower and each of its Restricted
Subsidiaries will also permit representatives of any of the Lead Arrangers to
discuss with their respective auditors their respective businesses, assets,
liabilities, financial positions, results of operations and business prospects.
Section 6.8 USE OF PROCEEDS. The Borrower will use the aggregate proceeds
of all Advances (a) to refinance the Indebtedness outstanding under the Existing
Credit Agreement, (b) to finance Permitted Acquisitions and Permitted
Investments, (c) to make Restricted Payments to Holdco and Intermediate Holdco
(if any) permitted under SECTION 8.7, (d) to provide funding for the
acquisition, leasing, construction/development, management and build-out of
Towers, Tower Sites, Shared Tenant Infrastructure Sites and other sites related
to the foregoing, in each case as permitted hereunder and (e) for working
capital and other general corporate purposes (including, without limitation,
fees and expenses relating to any Permitted Acquisitions and any Permitted
Investments, and the transactions contemplated by this Agreement and the other
Loan Documents) of the Borrower and its Restricted Subsidiaries. No proceeds of
Advances hereunder shall be used for the purchase or carrying or the extension
of credit for the purpose of purchasing or carrying any margin stock within the
meaning of Regulations U and X of the Board of Governors of the Federal Reserve
System.
Section 6.9 TOWER SITE AGREEMENTS. The Borrower shall make available to
the Administrative Agent, within a reasonable period of time following the
Administrative Agent's request therefor, at one central location, copies of all
Tower Site Lease Agreements, Tower Space Lease Agreements and Tower Site
Management Agreements entered into by the Borrower or any of the applicable
Subsidiaries, and to the extent that any consent is required to the pledge or
assignment of any Tower Site Lease Agreement, Tower Space Lease Agreement or
Tower Site Management Agreement by the Borrower or any of the Subsidiary
Guarantors to the Administrative Agent as security for the Obligations, the
Borrower shall use commercially reasonable efforts to obtain such consent in
writing to the extent reasonably requested by the Administrative Agent.
Section 6.10 INDEMNITY. The Borrower, for itself and on behalf of each of
its Restricted Subsidiaries, agrees, jointly and severally, to indemnify and
hold harmless each Indemnified Party from and against any and all claims,
liabilities, losses, damages, actions, reasonable attorneys' fees and expenses
(as such fees and expenses are incurred) and demands by any party, including the
costs of investigating and defending such claims (a) resulting from any breach
or alleged breach by Holdco, Intermediate Holdco (if any), the Borrower or any
of its Restricted Subsidiaries of any representation, warranty, or covenant made
hereunder or under any other Loan Document; (b) arising out of or in connection
with (i) the Commitments, the Loans or otherwise under this Agreement or any
other Loan Document (including, without limitation, the taking of collateral
security for the Obligations), including the use of the proceeds
73
of Loans hereunder in any fashion by the Borrower or any of its Subsidiaries or
the performance of their respective obligations under the Loan Documents by
Holdco, Intermediate Holdco (if any), the Borrower or any of the Borrower's
Subsidiaries, (ii) allegations of any participation by the Credit Parties, or
any of them, in the affairs of Holdco, any Intermediate Holdco, the Borrower or
any of the Borrower's Subsidiaries, or allegations that any of them has any
joint liability with Holdco, any Intermediate Holdco, the Borrower or any of the
Borrower's Subsidiaries for any reason, or (iii) any claims against the Credit
Parties, or any of them, by any shareholder, partner, or other investor in or
lender to Holdco, any Intermediate Holdco, the Borrower or any of the Borrower's
Subsidiaries, by any brokers or finders or investment advisers or investment
bankers retained by Holdco, any Intermediated Holdco, the Borrower, any of the
Borrower's Subsidiaries or by any other third party, arising out of the
Commitments, the Loans or otherwise under this Agreement or any other Loan
Document; or (c) in connection with taxes (other than income taxes or any taxes
attributable to a Credit Party's failure to comply with the requirements of
SECTION 2.13(B) (but only with respect to such Credit Party)), fees, and other
charges payable in connection with the Loans, or the execution, delivery,
recording, and enforcement of this Agreement, the Security Documents, the other
Loan Documents, and any amendments thereto or waivers of any of the provisions
thereof; unless the Person seeking indemnification hereunder is determined in
such case to have acted with gross negligence or willful misconduct, in any case
by a final, non-appealable judicial order. The obligations of the Borrower and
its Restricted Subsidiaries under this SECTION 6.10 are in addition to, and
shall not otherwise limit, any liabilities which the Borrower or any Restricted
Subsidiary might otherwise have in connection with any warranties or similar
obligations of the Borrower or such Restricted Subsidiary in any other agreement
or instrument or for any other reason. It is understood and agreed that, to the
extent not precluded by a conflict of interest, each Indemnified Party shall
endeavor to work cooperatively with the Borrower with a view to minimizing the
legal and other expenses associated with any defense and any potential
settlement or judgment. To the extent reasonably practicable and not
disadvantageous to any Indemnified Party, it is anticipated that a single
counsel shall be used. Settlement of any claim or litigation involving any
material indemnified amount shall be subject to the approval of the Borrower
(which approval shall not be unreasonably withheld).
Section 6.11 INTEREST RATE HEDGING. If at any time the Eurodollar Rate with
respect to a Eurodollar Advance Period of 3 months shall exceed 4.00% for a
period of thirty (30) consecutive days, within thirty (30) days thereafter,
the Borrower shall enter into one or more Interest Hedge Agreements which fix
or place a limit on the Borrower's interest obligations at interest rates
reasonably acceptable to the Administrative Agent with respect to the Loans
such that, at all times thereafter, not less than fifty percent (50%) of the
aggregate amount of Total Debt outstanding shall be hedged or on a fixed rate
basis. Each Interest Hedge Agreement shall provide interest rate protection in
conformity with International Swap Dealers Association standards and for a
period of the lesser of (a) two (2) years from the date of such Interest Hedge
Agreement, or (b) the period remaining until the Maturity Date applicable to
the Loans with respect to which such Interest Rate Hedge Agreements have been
entered. All obligations of the Borrower to any Lender, or any affiliate of
any Lender, pursuant to any Interest Hedge Agreement, shall be deemed to be
part of the Obligations.
Section 6.12 ENVIRONMENTAL MATTERS. Except as would not reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect,
the conduct of the Borrower's and each of its Restricted Subsidiaries' business
operations will not violate any
74
Environmental Laws (including, without limitation, any rules and regulations
applicable to the Borrower and its Restricted Subsidiaries relating to radiated
power density maximum permissible exposure levels), and neither the Borrower nor
any of its Restricted Subsidiaries will use, nor will the Borrower or any of its
Restricted Subsidiaries authorize the use of, any Hazardous Materials at any of
its places of business except such materials as are incidental to the Borrower's
or such Restricted Subsidiary's normal course of business, maintenance and
repairs, and then only in compliance with all applicable Environmental Laws. The
Borrower and each of its Restricted Subsidiaries shall have, maintain, apply for
and/or timely renew all permits, licenses and authorizations required for the
Towers and other business operations at its places of business or otherwise
except where the failure to do so would not reasonably be expected to have,
individually or in the aggregate, a Materially Adverse Effect. The Borrower
shall promptly notify the Administrative Agent in writing of (a) any and all
material enforcement, cleanup, remedial, removal, or other governmental or
regulatory actions instituted, completed or threatened in writing pursuant to
any applicable Environmental Law; (b) the existence of any environmental
condition or circumstances known to the Borrower which could reasonably be
anticipated to give rise to material liability under any Environmental Law or
materially impact the existing operation of the business of the Borrower and its
Restricted Subsidiaries; and (c) all claims made or threatened by any third
party against the Borrower or any of its Restricted Subsidiaries relating to
damages, contribution, cost recovery compensation, loss or injury resulting from
any Hazardous Materials, which, in any of the above cases, could reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect.
The Borrower shall promptly notify the Administrative Agent of any material
remedial action taken by the Borrower or any of its Restricted Subsidiaries
pursuant to Environmental Laws or any administrative or judicial order with
respect to the Borrower's or such Restricted Subsidiary's Towers or other
business operations.
Section 6.13 ERISA. The Borrower shall, and shall cause each of its
Restricted Subsidiaries to, at all times make, or cause to be made, prompt
payment of all material contributions required under the terms of their Plans
and to meet the minimum funding standards set forth in ERISA with respect to
such Plans. The Borrower shall maintain, and shall cause each of its Restricted
Subsidiaries to maintain, each of the Plans of Borrower and its Restricted
Subsidiaries in material compliance with their terms and applicable provisions
of ERISA and the Code, except where the failure to so comply would not
reasonably be expected to have, individually or in the aggregate, a Materially
Adverse Effect.
Section 6.14 FURTHER ASSURANCES. Holdco, Intermediate Holdco (if any)
and the Borrower will promptly cure, or cause to be cured, defects in the
creation and issuance of any of the Notes and the execution and delivery of the
Loan Documents (including, without limitation, this Agreement), resulting from
any act or failure to act by Holdco, any Intermediate Holdco, the Borrower or
any of its Restricted Subsidiaries or any employee or officer thereof. Holdco,
Intermediate Holdco (if any) and the Borrower, at their sole expense, will
promptly execute and deliver to the Credit Parties, or cause to be executed and
delivered to the Credit Parties, all such other and further documents,
agreements, and instruments in compliance with or accomplishment of the
covenants and agreements of Holdco, any Intermediate Holdco, the Borrower and
its Restricted Subsidiaries in the Loan Documents (including, without
limitation, this Agreement), or to obtain any consents, all as may be reasonably
necessary or appropriate in connection therewith as may be reasonably requested.
Section 6.15 COVENANTS REGARDING ADDITIONAL COLLATERAL.
75
(a) Concurrently with (x) the consummation of each Acquisition
by the Borrower (whether directly or indirectly) of any new Subsidiary
Guarantor, (y) the formation of any new Subsidiary Guarantor, or (z) the
re-designation of any domestic Unrestricted Subsidiary as a Restricted
Subsidiary, the Borrower will, and will cause each of the applicable
Subsidiaries to, provide to the Administrative Agent the following:
(i) a completed questionnaire, in the form of EXHIBIT S
attached hereto, with respect to such new Subsidiary Guarantor;
(ii) a duly executed amendment to the Borrower Pledge
Agreement or the Subsidiary Pledge Agreement, as applicable, pursuant to which
all of the Equity Interests in such new Subsidiary Guarantor held directly or
indirectly by the Borrower shall be pledged to the Administrative Agent as
additional Collateral securing the Obligations to be held by the Administrative
Agent in accordance with the terms of the Borrower Pledge Agreement or the
Subsidiary Pledge Agreement, as applicable, together with all original share
certificates representing such Equity Interests and duly executed certificate
powers;
(iii) a duly executed supplement to the Subsidiary Guaranty
for such new Subsidiary Guarantor, together with all schedules thereto;
(iv) a duly executed supplement to the Subsidiary Security
Agreement for such new Subsidiary Guarantor, together with all schedules
thereto;
(v) in the case of any new Subsidiary Guarantor holding
any Equity Interests in any Restricted Subsidiary, a duly executed supplement to
the Subsidiary Pledge Agreement, pursuant to which such Subsidiary Guarantor
shall pledge to the Administrative Agent all of the Equity Interests held by it,
whether now owned or hereafter acquired, in (A) each of the Subsidiary
Guarantors and (B) each of the Foreign Subsidiaries (but not to exceed sixty-six
percent (66%) of the total Equity Interests in any such Person);
(vi) a loan certificate from such new Subsidiary
Guarantor, in form and substance reasonably satisfactory to the Administrative
Agent, including a certificate of incumbency with respect to each Authorized
Signatory of such new Subsidiary Guarantor, together with the following items:
(A) a copy of the certificate or articles of incorporation, certificate of
limited partnership or certificate of organization of such new Subsidiary
Guarantor, certified to be complete and correct by the Secretary of State of the
state of such new Subsidiary Guarantor's organization; (B) a certificate of good
standing for such new Subsidiary Guarantor issued by the Secretary of State or
similar state official for the state in which such Subsidiary Guarantor is
organized; (C) a complete and correct copy of the by-laws, partnership agreement
or limited liability company or operating agreement of such new Subsidiary
Guarantor; and (D) a complete and correct copy of the resolutions of the board
of directors, or other appropriate entity, of such new Subsidiary Guarantor
authorizing such new Subsidiary Guarantor to execute, deliver and perform the
Loan Documents to which it is a party; and
(vii) all other documentation, including, without
limitation, an Intellectual Property Security Agreement or any other security
agreement covering any additional intellectual property owned by such new
Subsidiary Guarantor and one or more opinions of counsel reasonably satisfactory
to the Administrative Agent, which in the reasonable opinion of the
Administrative Agent is appropriate with respect to such transaction.
76
(b) Concurrently with (x) the consummation of each Acquisition
by the Borrower (whether directly or indirectly) of any new Foreign Restricted
Subsidiary, (y) the formation of any new Foreign Restricted Subsidiary, or (z)
the re-designation of any foreign Unrestricted Subsidiary as a Foreign
Restricted Subsidiary, the Borrower will, and will cause each of the Subsidiary
Guarantors to, provide to the Administrative Agent the following:
(i) a duly executed amendment to the Borrower Pledge
Agreement or the Subsidiary Pledge Agreement, as applicable, pursuant to which
all of the Equity Interests owned by the Borrower (whether directly or
indirectly) in such new Foreign Restricted Subsidiary (but not to exceed
sixty-six percent (66%) of the total Equity Interests of any such Person) shall
be pledged to the Administrative Agent as additional Collateral securing the
Obligations to be held by the Administrative Agent in accordance with the terms
of the Borrower Pledge Agreement or the Subsidiary Pledge Agreement, as
applicable, together with all original share certificates representing such
Equity Interests and duly executed certificate powers; and
(ii) all other documentation, including, without
limitation, one or more opinions of counsel reasonably satisfactory to the
Administrative Agent, which in the reasonable opinion of the Administrative
Agent is appropriate with respect to such transaction.
(c) In the event that the Borrower or any of its Restricted
Subsidiaries shall be party to a merger permitted pursuant to SECTION 8.5, the
Borrower will, and will cause each of the applicable Subsidiary Guarantors to,
provide to the Administrative Agent the following:
(i) duly executed copies of the documents executed by the
Borrower and its Restricted Subsidiaries in connection with such transaction,
together with the filing evidence of such merger certified by the secretary of
state for the applicable jurisdiction; and
(ii) all such other documentation that would be otherwise
required hereunder with respect to the surviving Person of such merger,
including, without limitation, supplements to Security Documents (together with
applicable schedules and exhibits thereto), new Subsidiary questionnaires and
amendments to existing Security Documents, in each case which in the reasonable
opinion of the Administrative Agent is appropriate.
(d) Concurrently with the creation of Super-Holdco and as a
condition to the creation of Super-Holdco, the Borrower and SpectraSite, Inc.
will cause Super-Holdco or, if SpectraSite, Inc. becomes Super-Holdco,
Intermediate Holdco, to provide to the Administrative Agent the following, each
of which shall be in form and substance reasonably satisfactory to the
Administrative Agent:
(i) a duly executed joinder to this Agreement whereby
Super-Holdco or, if SpectraSite, Inc. becomes Super-Holdco, Intermediate Holdco,
will become a party to this Agreement with full force and effect as if it was an
original signatory hereof, which joinder will not require the consent of any of
the Borrower or any Guarantor or any Lender;
(ii) a duly executed joinder and supplement to the Holdco
Pledge Agreement pursuant to which Super-Holdco or, if SpectraSite, Inc. becomes
Super-
77
Holdco, Intermediate Holdco, will become a party to the Holdco Pledge Agreement
with full force and effect as if it was an original signatory thereof and pledge
to the Administrative Agent all of the Equity Interests held by it in
Intermediate Holdco, the Borrower or any Restricted Subsidiary as additional
Collateral securing the Obligations to be held by the Administrative Agent in
accordance with the terms of the Holdco Pledge Agreement, together with all
original share certificates representing such Equity Interests and duly executed
certificate powers; and
(iii) all other documentation, including, without
limitation, one or more secretary's certificates and opinions of counsel
reasonably satisfactory to the Administrative Agent, which in the reasonable
opinion of the Administrative Agent is appropriate with respect to such
transaction.
(e) Any document, agreement or instrument executed or issued
pursuant to this SECTION 6.15 shall be a "Loan Document" for purposes of this
Agreement.
Section 6.16 TOWER ASSET SUB. All Original Nextel Towers shall be held
exclusively by TAS.
Section 6.17 COVENANTS REGARDING THE DESIGNATION OF SUBSIDIARIES. As of the
Agreement Date, the Borrower shall designate in writing to the Administrative
Agent each of its direct and indirect Subsidiaries as Restricted Subsidiaries
or Unrestricted Subsidiaries for purposes of this Agreement. With respect to
each Subsidiary of the Borrower formed or acquired after the Agreement Date,
the Borrower shall, promptly after the formation or Acquisition of such
Subsidiary, designate in writing to the Administrative Agent whether each such
Subsidiary is a Restricted Subsidiary or an Unrestricted Subsidiary. To the
extent that the Borrower shall fail to designate a Subsidiary pursuant to the
terms of this SECTION 6.17, within thirty (30) days of the formation or
Acquisition thereof, each such Subsidiary shall be deemed to be a Restricted
Subsidiary. After the Agreement Date, so long as no Default or Event of
Default then exists or would be caused thereby, the Borrower may, upon thirty
(30) days' (or such shorter period as may be acceptable to the Administrative
Agent) prior written notice to the Administrative Agent (a) re-designate
Unrestricted Subsidiaries as Restricted Subsidiaries subject to compliance
with the requirements of this SECTION 6.17 and SECTION 6.15, and (b)
re-designate Restricted Subsidiaries as Unrestricted Subsidiaries, PROVIDED
that (i) the Borrower shall provide to the Administrative Agent calculations
demonstrating pro forma compliance with the Financial Covenants and the
Investment basket set forth in SECTION 8.5(V) after giving effect to such
re-designation and (ii) such Restricted Subsidiary shall not, in the aggregate
with all other Restricted Subsidiaries re-designated as Unrestricted
Subsidiaries since the Agreement Date, contribute more than 10% of Annualized
EBITDA as of the calendar quarter end immediately preceding such
re-designation for which financial statements have been delivered.
Notwithstanding anything to the contrary contained herein, no Unrestricted
Subsidiary may be designated or re-designated as a Restricted Subsidiary if
not owned directly by the Borrower or another Restricted Subsidiary.
ARTICLE 7 - INFORMATION COVENANTS
So long as any of the Obligations (other than contingent indemnification
obligations) is outstanding and unpaid or the Borrower has a right to borrow
hereunder (whether or not the conditions to borrowing have been or can be
fulfilled), or any Letter of Credit is outstanding (and not cash collateralized)
and unless the Majority Lenders, or such greater
78
number of Lenders as may be expressly provided herein, shall otherwise consent
in writing, the Borrower will furnish or cause to be furnished to, in the case
of SECTIONS 7.1, 7.2 and 7.3, each Credit Party, and in the case of SECTIONS 7.4
and 7.5, the Administrative Agent, at its offices:
Section 7.1 QUARTERLY FINANCIAL STATEMENTS AND INFORMATION. Within
forty-five (45) days after the last day of each of the first three (3) fiscal
quarters, and within ninety (90) days after the last day of the fourth fiscal
quarter of each fiscal year of the Borrower, unaudited balance sheets of (a)
Holdco, on a consolidated basis with its Subsidiaries, and (b) the Borrower, on
a consolidated basis with its Restricted Subsidiaries and on a consolidating
basis with its Unrestricted Subsidiaries, in each case as at the end of such
quarter, and the related statements of cash flows and statements of operations
of such parties as set forth in clauses (a) and (b) above, and a revenue and
expense statement of the Borrower and its Subsidiaries on a consolidated basis
by Tower Operations and Other Operations, in each case for such quarter and for
the elapsed portion of the year ended with the last day of such quarter, which,
with respect to such financial statements of (i) Holdco, on a consolidated basis
with its Subsidiaries, and (ii) the Borrower, on a consolidated basis with its
Restricted Subsidiaries and on a consolidating basis with its Unrestricted
Subsidiaries, shall set forth in comparative form such figures as at the end of,
with respect to the balance sheets and statements of cash flows, the preceding
fiscal year end and, with respect to the statements of operations, as at the end
of and for such quarter and the corresponding quarter during the preceding
fiscal year, and against the figures set forth for such quarter in the
Borrower's business plan provided to the Credit Parties pursuant to SECTION
7.4(D), and shall be certified by a Financial Officer of the Borrower, to be, in
his or her opinion, complete and correct in all material respects and to present
fairly in all material respects, in accordance with GAAP (subject only to normal
year-end adjustments and the absence of footnotes), the financial position of
(A) Holdco, on a consolidated basis with its Subsidiaries and (B) the Borrower,
on a consolidated basis with its Restricted Subsidiaries and on a consolidating
basis with its Unrestricted Subsidiaries, as applicable, as at the end of such
period and the results of operations for such period, and for the elapsed
portion of the year ended with the last day of such period.
Section 7.2 ANNUAL FINANCIAL STATEMENTS AND INFORMATION. In addition to
the quarterly financial statements and information to be provided pursuant to
SECTION 7.1 with respect to the fourth fiscal quarter of the Borrower, within
ninety (90) days after the end of each fiscal year of the Borrower, the audited
balance sheet of (a) Holdco, on a consolidated basis with its Subsidiaries, and
(b) the Borrower, on a consolidated basis with its Subsidiaries, in each case as
at the end of such fiscal year, setting forth in comparative form the figures as
at the end of and for the previous fiscal year, and the related audited
statements of operations and the related statements of cash flows of (i) Holdco,
on a consolidated basis with its Subsidiaries, and (ii) the Borrower, on a
consolidated basis with its Subsidiaries, and the related profit and loss
statements of (A) Holdco, on a consolidated basis with its Subsidiaries, and (B)
the Borrower, on a consolidated basis with its Subsidiaries, and the related
profit and loss statements of the Borrower, on a consolidated basis with its
Subsidiaries, in each case for such fiscal year, setting forth in comparative
form the figures as at the end of and for the previous fiscal year and
certified, without any qualifications or explanatory paragraphs, by independent
certified public accountants of national recognized standing, whose opinion
shall be in scope and substance reasonably satisfactory to the Lead Arrangers,
and include a statement signed by such accountants to the effect that in
connection with their examination of such financial statements they have
reviewed the provisions of this Agreement and have no knowledge of any event or
79
condition which constitutes an Event of Default or, if they have such knowledge,
specifying the nature and period of existence thereof and that such accountants
have authorized the Borrower to deliver such financial statements and opinion
thereon to the Credit Parties pursuant to this Agreement; PROVIDED, HOWEVER,
that in issuing such statement, such independent accountants shall not be
required to go beyond normal auditing procedures conducted in connection with
their opinion referred to above. Notwithstanding the foregoing, (a) prior to any
fiscal year in which either (i) EBITDA for the immediately preceding twelve (12)
month is less than ninety percent (90%) of Holdco EBITDA or (ii) the total
assets of the Borrower and its Restricted Subsidiaries are less than ninety
percent (90%) of the total assets of Holdco and its Subsidiaries as of such
fiscal year end, the Borrower shall only be required to provide the financial
statements referred to in this SECTION 7.2 for Holdco on a consolidated basis
with its Subsidiaries, and (b) thereafter, the Borrower shall only be required
to provide the financial statements referred to in this SECTION 7.2 for the
Borrower on a consolidated basis with its Subsidiaries.
Section 7.3 COMPLIANCE CERTIFICATES. At the time the financial
statements are furnished pursuant to SECTION 7.1, a Compliance Certificate:
(a) setting forth as at the end of such fiscal quarter, the
arithmetical calculations required to establish (i) the Applicable Margin, (ii)
whether the Borrower was in compliance with the requirements of the Financial
Covenants, and (iii) whether the Borrower was in compliance with the
requirements of SECTION 6.11;
(b) setting forth for the Borrower and its Restricted
Subsidiaries, for each such fiscal quarter, a summary of (i) the number and type
(i.e. telecommunications or broadcast) of Towers built, acquired, leased or sold
by the Borrower or any of its Restricted Subsidiaries during such quarter, (ii)
a list of all Acquisitions, Investments, Restricted Payments and dispositions of
assets from the Agreement Date through the end of such quarter together with the
total amount of each of the foregoing categories, (iii) a list of all Material
Contracts entered into during such quarter identifying whether such Material
Contract requires consent to the granting of a Lien in favor of the
Administrative Agent on the rights of the Borrower or any of its Restricted
Subsidiaries thereunder, (iv) an updated summary of the corporate organization
of the Borrower, its Subsidiaries and its Investments (identifying whether each
of such Subsidiaries constitutes a Restricted Subsidiary or an Unrestricted
Subsidiary), and (v) with respect to the fourth fiscal quarter of the Borrower,
all Tower Sites and other locations of Collateral acquired by the Borrower and
its Restricted Subsidiaries during the fiscal year then ended; and
(c) stating that, to the best of his or her knowledge, no Default
or Event of Default has occurred as at the end of such period, or, if a Default
or an Event of Default has occurred, disclosing each such Default or Event of
Default and its nature, when it occurred, whether it is continuing and the steps
being taken by the Borrower with respect to such Default or Event of Default.
Section 7.4 COPIES OF OTHER REPORTS.
(a) Promptly upon receipt thereof, copies of all material reports,
if any, submitted to Holdco, any Intermediate Holdco or the Borrower by their
independent public accountants regarding Holdco, any Intermediate Holdco or the
Borrower. The Administrative Agent agrees to provide to the Lenders a copy of
any such report which the Administrative Agent receives from the Borrower.
80
(b) Promptly upon receipt thereof, copies of any material notice
or report received from the FCC or the FAA or any other Governmental Authority,
or regarding any Material Towers.
(c) Annually, a certificate of insurance indicating that the
requirements of SECTION 6.5 remain satisfied for such fiscal year.
(d) Annually, and in no event later than February 28 of any year,
a copy of the Borrower's annual business plan on a quarterly basis and updated
Projections for such fiscal year. The Administrative Agent agrees to provide to
the Lenders a copy of any such plan which the Administrative Agent receives from
the Borrower.
(e) In connection with any proposed Acquisition or Investment by
the Borrower or any of its Restricted Subsidiaries, and otherwise from time to
time and promptly upon each request, such data, certificates, reports,
statements, documents, or further information reasonably available to the
Borrower regarding the business, assets, liabilities, financial position,
projections, results of operations, of the Borrower or any of its Restricted
Subsidiaries as the Credit Parties through the Administrative Agent may
reasonably request.
(f) To the extent not covered elsewhere in this Article 7,
promptly after the sending thereof, copies of all material financial statements,
reports and other information which Holdco, Intermediate Holdco (if any), the
Borrower or any of its Restricted Subsidiaries sends to any holder of its Funded
Debt or its securities or which Holdco, Intermediate Holdco (if any), the
Borrower or any of its Restricted Subsidiaries files with the Securities and
Exchange Commission or any national securities exchange; PROVIDED, HOWEVER, that
with respect to filings with the Securities and Exchange Commission copies of
such filings shall be deemed to have been provided to the Lenders upon the
delivery of notice of such filing to the Administrative Agent. The
Administrative Agent agrees to provide to the Lenders any such notice of a
filing with the Securities and Exchange Commission which the Administrative
Agent receives from the Borrower.
Section 7.5 NOTICE OF LITIGATION AND OTHER MATTERS. Prompt notice (and,
in any event notice within five (5) Business Days of the Borrower's receipt of
notice of the occurrence thereof) of any of the following events after the
Borrower has received notice or otherwise becomes aware thereof;
(a) the commencement of all proceedings and investigations
involving an amount in controversy in excess of $10,000,000 by or before any
governmental body and all actions and proceedings in any court or before any
arbitrator involving an amount in controversy in excess of $10,000,000 against
Holdco, any Intermediate Holdco, the Borrower or any of its Restricted
Subsidiaries, or any Material Towers, or any Necessary Authorization regarding
any Material Towers;
(b) any change with respect to the business, assets, liabilities,
financial position, results of operations of the Borrower or any of its
Subsidiaries that could reasonably be expected to have a Materially Adverse
Effect;
(c) any Default or Event of Default, or the occurrence or
non-occurrence of any event which constitutes, or which with the passage of time
or giving of notice
81
or both would constitute a default by Holdco, any Intermediate Holdco, the
Borrower or any of its Restricted Subsidiaries under any Material Contract or
any other material agreement, other than this Agreement, to which Holdco, any
Intermediate Holdco, the Borrower or any of its Restricted Subsidiaries is a
party or by which any of their respective properties may be bound, which
reasonably could be expected to have a Materially Adverse Effect, giving in each
case the details thereof and specifying the action proposed to be taken with
respect thereto;
(d) to the extent that any of the following would reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect,
(i) the maintenance of, or contribution to, by the Borrower or any of its
Restricted Subsidiaries, or any of their ERISA Affiliates, in any Plan not
listed on SCHEDULE 5.1(M), or (ii) the occurrence of any Reportable Event or a
material non-exempt `prohibited transaction' (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) with respect to any Plan of the
Borrower or any of its Restricted Subsidiaries or the institution or threatened
institution by PBGC of proceedings under ERISA to terminate or to partially
terminate any such Plan or the commencement or threatened commencement of any
litigation regarding any such Plan, other than litigation involving a routine
claim for benefits;
(e) the occurrence of any event subsequent to the Agreement Date
which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in SECTION 5.1(L);
and
(f) upon incurring or otherwise obtaining a "commercial tort
claim" (as that term is defined in the Uniform Commercial Code of the State of
New York) after the date hereof against any third party and, upon request of the
Administrative Agent promptly amend the Borrower Security Agreement or
Subsidiary Security Agreement, as applicable, authorize the filing of additional
or amendments to existing financing statements and do such other acts or things
deemed necessary or desirable by the Administrative Agent to give the
Administrative Agent a first priority, perfected security interest in any such
commercial tort claim.
The Administrative Agent agrees to provide the Lenders copies of any such
items in this SECTION 7.5 which the Administrative Agent receives from the
Borrower.
ARTICLE 8 - NEGATIVE COVENANTS
So long as any of the Obligations (other than contingent indemnity
obligations) is outstanding and unpaid or the Borrower has a right to borrow
hereunder (whether or not the conditions to borrowing have been or can be
fulfilled), or any Letter of Credit is outstanding (and not cash
collateralized), and unless the Majority Lenders (or such greater number of
Lenders as may be expressly provided herein) shall otherwise consent in writing:
Section 8.1 INDEBTEDNESS. None of Holdco, Intermediate Holdco (if any)
or the Borrower shall, and the Borrower shall cause each of its Restricted
Subsidiaries not to, create, assume, incur or otherwise become or remain
obligated in respect of, or permit to be outstanding, any Indebtedness except:
(a) Indebtedness under this Agreement and the other Loan Documents
(including, without limitation, any Incremental Facility);
82
(b) Capitalized Lease Obligations of the Borrower and its
Restricted Subsidiaries not to exceed an aggregate principal amount of
$25,000,000 at any one time outstanding over the remainder of the term of such
obligations, less the amount of any Indebtedness under SECTION 8.1(I);
(c) Indebtedness of TAS in favor of the Nextel Tenants secured
by the Nextel Subordinated Lien;
(d) Indebtedness in respect of Interest Hedge Agreements required
or permitted to be entered into pursuant to SECTION 6.11, and Indebtedness in
respect of any Currency Hedge Agreement in a notional amount, determined at the
time of incurrence, not to exceed the Dollar Equivalent Amount of projected
EBITDA with respect to the applicable Foreign Restricted Subsidiary for the term
of such Currency Hedge Agreement;
(e) Indebtedness of the Borrower or any of its Restricted
Subsidiaries to the Borrower or any wholly owned Restricted Subsidiary, and
Indebtedness that constitutes an Investment permitted under SECTION 8.2(A);
(f) Guaranties permitted under SECTION 8.6;
(g) With respect to Holdco and any Intermediate Holdco, (i) any
Permitted Holdco Debt, and (ii) accrual of interest, accrual of dividends, the
accretion of accreted value, the payment of interest in the form of additional
Indebtedness and the payment of dividends in the form of additional shares in
respect of any Permitted Holdco Debt;
(h) Indebtedness representing extensions, renewals, refinancings
or replacements (but not increases in principal amounts) of any of the
foregoing, and with respect to any extension, renewal, refinancing or
replacement of the Indebtedness described in SECTIONS 8.1(C) AND 8.1(G), so long
as such Indebtedness shall be subject to terms and conditions no more onerous
(including, without limitation, substantially similar subordination provisions)
than the original Indebtedness;
(i) Indebtedness of the Borrower and its Restricted Subsidiaries
in respect of conditional sale, rental or purchase money obligations, together
with any Capitalized Lease Obligations incurred pursuant to SECTION 8.1(B), in
an aggregate amount not to exceed $25,000,000 at any one time outstanding;
(j) Other unsecured Indebtedness incurred by the Borrower and its
Restricted Subsidiaries not to exceed $25,000,000 in the aggregate at any one
time outstanding; and
(k) Indebtedness of any Restricted Subsidiary acquired in a
transaction permitted by SECTION 8.5, provided that (i) such Indebtedness
existed at the time such Person became a Subsidiary and was not incurred in
anticipation thereof, (ii) no Person other than such Subsidiary becomes an
obligor in respect of such Indebtedness, (iii) to the extent secured, the Liens
securing such Indebtedness are permitted by clause (t) of the definition of
Permitted Liens, and (iv) such Indebtedness, together with the Indebtedness of
any other Subsidiary under this SECTION 8.1(K), does not exceed $10,000,000 in
the aggregate at any one time outstanding.
83
Section 8.2 INVESTMENTS. The Borrower shall not, and shall not permit any
of its Restricted Subsidiaries to, make any loan or advance, or make or hold any
Investment or otherwise acquire any evidences of Funded Debt, Equity Interests
or other securities of any Person, except that the Borrower and its Restricted
Subsidiaries may (a) make Investments in and loans to Restricted Subsidiaries;
(b) purchase or otherwise acquire and own Investments in Cash Equivalents; (c)
make Investments permitted by SECTION 8.5; (d) hold Investments existing as of
the Agreement Date as set forth on SCHEDULE 5.1(X); (e) make loans or advances
to employees in the ordinary course of business in an aggregate amount not to
exceed $7,500,000 at any time outstanding; (f) acquire stock, obligations or
securities received in settlement of debts created in the ordinary course of
business or in satisfaction of judgments; (g) incur prepaid expenses, hold
negotiable instruments held for collection and lease, or make utility and
workers' compensation, performance and other similar deposits; (h) subject to
the requirements of SECTIONS 2.7(A) and 2.7(B), make deposits of proceeds from
Permitted Dispositions with a "qualified intermediary," "qualified trustee" or
similar Person for purposes of facilitating a "like-kind" exchange made in
accordance with the applicable provisions of the Code; (i) make Investments
representing the non-cash portion of the Purchase Price of Permitted
Dispositions; (j) extend trade credit in the ordinary course of the Borrower's
or such Restricted Subsidiary's business, and (k) make Restricted Payments or
loans to Holdco and any Intermediate Holdco in the form of loans to the extent
such Restricted Payments are permitted under SECTION 8.7(B)(I) or (III).
Section 8.3 LIMITATION ON LIENS. None of Holdco, Intermediate Holdco
(if any) or the Borrower shall, and the Borrower shall cause each of its
Restricted Subsidiaries not to, create, assume, incur or permit to exist or to
be created, assumed, incurred or permitted to exist, directly or indirectly, any
Lien on any of their respective properties or assets, whether now owned or
hereafter acquired, except for Permitted Liens.
Section 8.4 AMENDMENT AND WAIVER. The Borrower shall not, and shall
cause each of its Restricted Subsidiaries not to, without the prior written
consent of the Administrative Agent, enter into any amendment of, or agree to or
accept any waiver of, (i) which would materially adversely affect the rights of
the Borrower and the Credit Parties, or any of them, of any of the provisions
of, (a) its organizational documents, including, without limitation, its
certificate or articles of incorporation (other than any increase in the number
of authorized shares) and by-laws or (b) any documents evidencing or relating to
the issuance of any Permitted Holdco Debt, or (ii) which would reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect,
of any of the provisions (including, without limitation, any of the closing
conditions set forth therein) of, (a) any Permitted Acquisition Documents or (b)
any Material Contract.
Section 8.5 LIQUIDATION; MERGER; ACQUISITION OR DISPOSITION OF ASSETS. The
Borrower shall not, and shall cause each of its Restricted Subsidiaries not
to, at any time: (a) liquidate or dissolve itself (or suffer any liquidation
or dissolution) or otherwise wind up; (b) enter into any merger, consolidation
or other business combination; (c) issue any Equity Interests; (d) sell,
abandon, transfer, trade or otherwise dispose of, in a single transaction or
in a series of related transactions, (x) any Equity Interests of a Restricted
Subsidiary, (y) all or substantially all of the assets of any division or line
of business of the Borrower or any of its Restricted Subsidiaries or (z) any
other assets outside of the ordinary course of business; (e) acquire any
Equity Interests or make any Acquisition; (f) create or acquire any
Subsidiary; or (g)
84
acquire or construct any Tower and Tower Sites without an anchor tenant under
contract; PROVIDED, HOWEVER, that:
(i) so long as no Default or Event of Default then exists
or would be caused thereby the following are permitted:
(A) a merger among the Borrower or one or more of
its Restricted Subsidiaries (other than TAS) with or into any other Person,
or, subject to SECTION 8.5(V), an Acquisition permitted hereunder effected
by a merger; PROVIDED, HOWEVER, that (I) with respect to any merger
involving the Borrower or one of its Restricted Subsidiaries in which the
Borrower is not the surviving entity, the surviving entity shall assume all
of the obligations of the Borrower hereunder and under the other Loan
Documents, as applicable, and shall execute and deliver to the
Administrative Agent an assumption agreement, in form and substance
reasonably satisfactory to the Lead Arrangers, (II) the surviving entity, at
its sole expense, shall promptly execute and deliver to the Credit Parties,
or cause to be executed and delivered to the Credit Parties, all such other
and further documents, agreements, and instruments as may be reasonably
requested by the Administrative Agent in connection with the surviving
entity's obligations hereunder and under the other Loan Documents
(including, without limitation, (x) with respect to any merger involving the
Borrower in which the Borrower is not the surviving entity, renewal
promissory notes in favor of each Lender and (y) a loan certificate for such
surviving entity, in form and substance satisfactory to the Administrative
Agent, together with appropriate attachments thereto), and (III) the
surviving entity shall provide all other documentation, including, without
limitation, (x) an Intellectual Property Security Agreement or any other
security agreement covering any additional intellectual property obtained by
the Borrower, (y) lien search results with respect to such surviving entity
from all appropriate jurisdictions and filing offices, together with
appropriate UCC-3 termination statements relating to Liens which are not
Permitted Liens, and (z) one or more opinions of counsel reasonably
satisfactory to the Administrative Agent which in the reasonable opinion of
the Administrative Agent is appropriate with respect to such merger and
assumption (any document, agreement or instrument executed or issued
pursuant to this SECTION 8.5(I) shall be a "Loan Document" for purposes of
this Agreement);
(B) a merger between or among two or more
Restricted Subsidiaries (other than TAS); and
(C) a liquidation or dissolution of one or more
Restricted Subsidiaries (other than TAS) into its or their parent entity
(provided that the Borrower or one of its Restricted Subsidiaries is such
parent entity);
(ii) subject to compliance with the mandatory prepayment
provision of SECTION 2.7(A), the Borrower and its Restricted Subsidiaries may
sell, lease, abandon, transfer, trade or otherwise dispose of, in a single
transaction or in a series of related transactions, assets, at the fair market
value thereof, so long as:
(A) no Default or Event of Default shall then
exist before or after giving effect to such disposition; and
85
(B) the portion of Annualized EBITDA attributable
to such assets in the aggregate, (I) together with the portion of Annualized
EBITDA attributable to all other assets disposed of during the immediately
preceding twelve (12) month period, shall not exceed fifteen percent (15%)
of Annualized EBITDA calculated as of the last day of the fiscal quarter of
the Borrower most recently ended for which the financial statements referred
to in SECTION 7.1 have been delivered by the Borrower to the Administrative
Agent, and (II) together with the portion of Annualized EBITDA attributable
to all other assets disposed of during the term of this Agreement, shall not
exceed twenty-five percent (25%) of Annualized EBITDA calculated as of the
last day of the fiscal quarter of the Borrower most recently ended for which
the financial statements referred to in SECTION 7.1 have been delivered by
the Borrower to the Administrative Agent; PROVIDED, HOWEVER, that, in the
case of an exchange or swap of assets, only the excess, if any, of (x) the
portion of Annualized EBITDA attributable to the assets being disposed of,
over (y) the portion of Annualized EBITDA attributable to the assets being
acquired, shall be included in calculating Annualized EBITDA for purposes of
the Annualized EBITDA tests set forth above;
(iii) the Borrower and its Restricted Subsidiaries may (A)
make Investments as permitted under SECTION 8.2 and (B) transfer assets amongst
themselves,;
(iv) the Borrower and its Restricted Subsidiaries may
make Capital Expenditures in the ordinary course of their respective businesses;
(v) subject to compliance with SECTION 6.15, the Borrower
and its Restricted Subsidiaries may, so long as no Default or Event of Default
then exists or would be caused thereby, make the following Acquisitions and
Investments and form Subsidiaries with respect thereto:
(A) Acquisitions of (I) Tower Assets located in
the United States or (II) Persons organized under the laws of the United
States or any state thereof or the District of Columbia, or under the laws
of Mexico or Canada or any state or province thereof, that are engaged
primarily in the business of holding or leasing Tower Assets of such type,
and in other businesses reasonably related thereto, which are located in the
United States, Mexico or Canada; and
(B) Investments (whether structured as a single
Investment or a series of related Investments and including, without
limitation, any Unrestricted Subsidiary Investment) by the Borrower and its
Restricted Subsidiaries in an amount not to exceed, in the aggregate during
the term of this Agreement, the sum of (I) $50,000,000, plus (II) the amount
of any New Affiliated Equity to the extent allocated solely to this purpose,
plus (III) the amount of any Additional Investment Availability; and
(vi) subject to compliance with SECTION 6.15, the Borrower
and its Restricted Subsidiaries may form Subsidiaries.
Section 8.6 LIMITATION ON GUARANTIES. None of Holdco, Intermediate Holdco
(if any) or the Borrower shall, and the Borrower shall cause each of its
Restricted Subsidiaries not to, at any time Guaranty, assume, be obligated with
respect to, or permit to be outstanding
86
any Guaranty of, any obligation of any other Person other than (a) under any of
the Loan Documents or as permitted under SECTION 8.1, (b) a guaranty by
endorsement of negotiable instruments for collection in the ordinary course of
business, (c) contingent obligations incurred in the ordinary course of business
with respect to surety and appeal bonds, performance and return-of-money bonds
and other similar obligations, (d) a guaranty by Holdco, any Intermediate
Holdco, the Borrower or any of its Restricted Subsidiaries of the obligations of
the Borrower or any of its Restricted Subsidiaries, and (e) a guaranty by Holdco
or any Intermediate Holdco permitted under any documents evidencing or relating
to the issuance of any Permitted Holdco Debt.
Section 8.7 RESTRICTED PAYMENTS AND PURCHASES. The Borrower shall not, and
shall cause each of its Restricted Subsidiaries not to, directly or indirectly
declare or make any Restricted Payment or Restricted Purchase, except that (a)
the Borrower may make Restricted Payments to Holdco or any Intermediate
Holdco, as applicable, to enable such Person to make payments, to the extent
that such payments are required in the ordinary course of business and relate
directly to the Borrower or any of its Restricted Subsidiaries, or to services
provided for or on behalf of the Borrower or any of its Restricted
Subsidiaries, in each case that are required to be paid in cash, when due of
(i) corporate franchise fees and taxes actually owed by Holdco or any
Intermediate Holdco, (ii) legal and accounting fees and expenses actually
incurred by Holdco or any Intermediate Holdco, (iii) costs incurred to comply
with Holdco's or any Intermediate Holdco's reporting obligations under federal
or state laws, including, without limitation, reports filed with respect to
the Securities Act, the Exchange Act or the respective rules and regulations
promulgated thereunder, and (iv) other customary corporate overhead expense;
and (b) so long as no Default or Event of Default then exists or would result
therefrom, the Borrower may (i) make Restricted Payments to Holdco or any
Intermediate Holdco, as applicable, to enable such Person to make the
following payments when due: (A) dividend or interest payments, as applicable,
on Permitted Holdco Debt, and (B) payments to repurchase Equity Interests in
Holdco or any Intermediate Holdco owned by employees, officers and directors
of Holdco or any Intermediate Holdco, upon their death, disability or
termination of employment or service, in an aggregate amount not to exceed
$10,000,000 during any year or $15,000,000 during the term of this Agreement;
(ii) make Restricted Payments to Holdco to enable Holdco to repurchase
fractional shares of the common Equity Interests of Holdco resulting from the
consummation of any reverse stock split effected by Holdco in aggregate amount
not to exceed $400,000 during the term of this Agreement; and (iii) make
Specified Holdco Distributions.
Section 8.8 AFFILIATE TRANSACTIONS. The Borrower shall not, and shall
cause each of its Restricted Subsidiaries not to, at any time engage in any
transaction with an Affiliate (other than the Borrower or any of the wholly
owned Restricted Subsidiaries), nor make an assignment or other transfer of any
of its assets to any Affiliate (other than the Borrower or any of the wholly
owned Restricted Subsidiaries), on terms less advantageous than would be the
case if such transaction had been effected with a non-Affiliate, except (a) with
respect to Investments and loans permitted under SECTION 8.2(A); (b) with
respect to the transactions contemplated in connection with the Acquisition of
additional Towers from Nextel; (c) with respect to the Loans and other
transactions contemplated by this Agreement and the other Loan Documents; and
(d) with respect to the payment of customary commercial or investment banking,
underwriting, placement agent or financial advisor fees to Affiliates of the
Borrower for any such services rendered to the Borrower.
87
Section 8.9 CORPORATE NAME; CORPORATE STRUCTURE; BUSINESS. The Borrower
shall not, and shall cause each of its Restricted Subsidiaries not to, (a)
change its corporate name or corporate structure without giving the
Administrative Agent thirty (30) days' (or such shorter period as may be
acceptable to the Administrative Agent) prior written notice of its intention to
do so and complying with all reasonable requirements of the Administrative Agent
in regard thereto or (b) engage in any businesses other than the Tower
Operations and the Other Operations and activities related or incident thereto.
Neither Holdco nor any Intermediate Holdco shall engage in any business other
than that of holding the Equity Interests of the Borrower, any Intermediate
Holdco and any of its other Subsidiaries (as the case may be), and in activities
incidental or reasonably related thereto.
Section 8.10 NEGATIVE PLEDGE. The Borrower shall not, directly or
indirectly, and shall not permit any of its Restricted Subsidiaries to, enter
into any agreement (other than the Loan Documents) with any Person that
prohibits or restricts or limits the ability of the Borrower or any Restricted
Subsidiary to create, incur, pledge, or suffer to exist any Lien upon any of its
respective assets, or restricts the ability of any Restricted Subsidiary to make
Restricted Payments to the Borrower except (a) any encumbrance or restriction
that restricts in a customary manner the subletting, assignment or transfer of
any property or asset that is subject to a lease, license or other contract or
the assignment, encumbrance or hypothecation of such lease, license or other
contract; (b) any limitation or restriction contained in any Permitted Lien to
the extent such limitation or restriction restricts the imposition of Liens on
or the transfer of the property subject to such Permitted Liens; and (c) any
restriction imposed on assets subject to a Permitted Disposition pursuant to an
agreement entered into in connection with such Permitted Disposition pending the
closing of such sale or disposition.
ARTICLE 9 - FINANCIAL COVENANTS
Section 9.1 BORROWER LEVERAGE RATIO. The Borrower shall not permit as of
the end of any fiscal quarter ended during the term of this Agreement, or as of
the date of any Advance under this Agreement, the Borrower Leverage Ratio (if
applicable, after giving effect to such Advance) to exceed 4.50 to 1.00.
Section 9.2 INTEREST COVERAGE RATIO. The Borrower shall not permit as of
the end of any fiscal quarter ended during the term of this Agreement, the
Interest Coverage Ratio to be less than 2.50 to 1.00.
Section 9.3 FIXED CHARGE COVERAGE RATIO. The Borrower shall not permit
the Fixed Charge Coverage Ratio, as of the end of any fiscal quarter ended
during the term of this Agreement, to be less than 1.10 to 1.00.
ARTICLE 10 - DEFAULT
Section 10.1 EVENTS OF DEFAULT. Each of the following shall constitute an
Event of Default with respect to the Obligations, whatever the reason for such
event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment or order of any court or any
order, rule or regulation of any governmental or non-governmental body:
88
(a) Any representation or warranty made under this Agreement or
any other Loan Document shall prove to be incorrect or misleading in any
material respect when made or deemed to be made pursuant to SECTION 5.2;
(b) (i) The Borrower shall default in the payment of any
principal of the Loans when due, or (ii) the Borrower shall default in the
payment of any interest, fees or other amounts payable to any of the Credit
Parties when due and such Default shall not be cured by payment in full of such
amounts within three (3) days;
(c) (i) There shall occur any default in the performance or
observance of any agreement or covenant under SECTION 7.4 or 7.5, and such
default shall not be cured within the earlier of (A) a period of fifteen (15)
days from the date the Borrower knew of the occurrence of such default, or (B) a
period of fifteen (15) days after written notice of such default is given to the
Borrower, or (ii) there shall occur any default in the performance or observance
of any agreement or covenant under Article 7 (other than under SECTION 7.4 or
7.5), Article 8 or Article 9;
(d) There shall occur any default in the performance or observance
of any other agreement or covenant contained in this Agreement or any other Loan
Document not specifically referred to elsewhere in this SECTION 10.1, and such
default, if curable, shall not be cured within the earlier of (i) a period of
thirty (30) days from the date the Borrower knew of the occurrence of such
default, or (ii) a period of thirty (30) days after written notice of such
default is given to the Borrower; PROVIDED, HOWEVER, if any other Loan Document
shall expressly provide for a cure period with respect to any agreement or
covenant contained therein of less than thirty (30) days, such shorter cure
period shall apply with respect thereto;
(e) There shall be entered and remain unstayed a decree or order
for relief in respect of Holdco, any Intermediate Holdco, the Borrower or any of
the Borrower's Restricted Subsidiaries under Title 11 of the United States Code
as now constituted or hereafter amended, or any other applicable Federal or
state bankruptcy law or other similar law, or the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official of
Holdco, any Intermediate Holdco, the Borrower or any of the Borrower's
Restricted Subsidiaries, or of any substantial part of their respective
properties, or ordering the winding-up or liquidation of the affairs of Holdco,
any Intermediate Holdco, the Borrower or any of the Borrower's Restricted
Subsidiaries; or an involuntary petition shall be filed against Holdco, any
Intermediate Holdco, the Borrower or any of the Borrower's Restricted
Subsidiaries and a temporary stay entered, and (i) such petition and stay shall
not be diligently contested, or (ii) such petition and stay shall remain
uncontroverted for a period of ten (10) consecutive days, or continue
undismissed for a period of sixty (60) consecutive days;
(f) Any of Holdco, any Intermediate Holdco, the Borrower or any
of the Borrower's Restricted Subsidiaries shall file a petition, answer or
consent seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable Federal or state
bankruptcy law or other similar law, or Holdco, any Intermediate Holdco, the
Borrower or any of the Borrower's Restricted Subsidiaries shall consent to the
institution of proceedings thereunder or to the filing of any such petition or
shall seek or consent to the appointment or taking of possession of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of Holdco, any Intermediate Holdco, the Borrower or any of the Borrower's
Restricted Subsidiaries, or of any substantial part of their respective
properties, or
89
Holdco, any Intermediate Holdco, the Borrower or any of the Borrower's
Restricted Subsidiaries shall fail generally to pay their respective debts as
they become due, or the Board of Directors of Holdco, any Intermediate Holdco,
the Borrower or any of the Borrower's Restricted Subsidiaries shall take any
formal action in furtherance of any such action;
(g) One or more judgments (not paid or fully covered by insurance
as to which the relevant insurance company has acknowledged coverage) shall be
entered against the Borrower or any of its Restricted Subsidiaries for the
payment of money which exceeds $10,000,000 in the aggregate, or a warrant of
attachment or execution or similar process shall be issued or levied against
property of the Borrower or any of its Restricted Subsidiaries which, together
with all other such property of the Borrower or any of its Restricted
Subsidiaries subject to other such process, exceeds in value $10,000,000 in the
aggregate, and if, within thirty (30) days after the entry, issue or levy
thereof, such judgment, warrant or process shall not have been paid or
discharged or stayed pending appeal, or if, within thirty (30) days after the
expiration of any such stay, such judgment, warrant or process shall not have
been paid or discharged;
(h) There shall be at any time any "accumulated funding
deficiency," as defined in Section 302 of ERISA or in Section 412 of the Code,
with respect to any Pension Plan, or any trust created thereunder; or a trustee
shall be appointed by a United States District Court to administer any such
Pension Plan; or PBGC shall institute proceedings to terminate any such Pension
Plan; or the Borrower or any of its Subsidiaries shall incur any liability to
PBGC in connection with the termination of any such Pension Plan; or any
fiduciary of, or party in interest to, any Plan or trust created under any Plan
of the Borrower or any of its Subsidiaries shall engage in a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) or a breach of fiduciary duty under ERISA which would subject the
Borrower or any of its Subsidiaries to a material tax on "prohibited
transactions" imposed by Section 4975 of the Code or material liability under
Section 409 or 502 of ERISA; or any Plan of the Borrower or any of its
Subsidiaries which is intended to qualify under Section 401(a) of the Code shall
fail to meet the qualification requirements under such Code section, or the
Borrower or any of its Restricted Subsidiaries shall incur any withdrawal
liability with respect to any Multiemployer Plan, and, in each case, such event
or condition, together with other such events or conditions, if any, would be
reasonably likely to subject the Borrower and its Restricted Subsidiaries to any
tax, liability or penalty in excess of $10,000,000;
(i) Any of the Unrestricted Subsidiaries shall fail to pay and
discharge all material taxes, including, without limitation, withholding taxes,
assessments and governmental charges or levies required to be paid by them or
imposed upon them or their income or profits or upon any properties belonging to
them, prior to the date on which penalties attach thereto, but excluding any
taxes that are being diligently contested in good faith by appropriate
proceedings and for which reserves in conformity with GAAP have been set aside
on the books of the appropriate Unrestricted Subsidiary, or shall fail to timely
file all material information returns required by federal, state or local tax
authorities, and in each case, such failure, together with other such failures,
if any, would be reasonably likely to subject the Borrower and its Restricted
Subsidiaries to any tax, liability or penalty in excess of $10,000,000;
(j) There shall occur any default under any mortgage, deed to
secure debt, note, loan agreement, indenture or other instrument of Holdco, any
Intermediate Holdco, the Borrower or any of its Restricted Subsidiaries
evidencing Funded Debt in an amount in excess of $10,000,000, which default
would permit the acceleration of such Funded Debt;
90
(k) There shall occur any default which would permit acceleration
of the Indebtedness evidenced thereby under any Permitted Holdco Debt (or
documents evidencing or relating to the issuance of any Permitted Holdco Debt);
(l) Any Security Document or any Note or any other Loan Document
or any material provision thereof shall at any time and for any reason cease to
be in full force and effect or be declared by a court of competent jurisdiction
to be null and void, or a proceeding shall be commenced by Holdco, any
Intermediate Holdco, the Borrower, any of the Borrower's Subsidiaries or by any
Governmental Authority having jurisdiction over the Borrower or any of its
Restricted Subsidiaries, seeking to establish the invalidity or unenforceability
thereof (exclusive of questions of interpretation of any provision thereof), or
Holdco, any Intermediate Holdco, the Borrower or any of its Restricted
Subsidiaries shall deny that it has any liability or obligation for the payment
of principal or interest or other obligations purported to be created under any
Loan Document;
(m) Any Security Document shall for any reason fail or cease to
create a valid and first priority Lien on or Security Interest in the Collateral
in favor of the Administrative Agent, for the benefit of the Credit Parties,
purported to be covered thereby, subject to any Permitted Lien, or any such
perfected Lien or Security Interest in favor of the Administrative Agent shall
cease to be perfected; PROVIDED, HOWEVER, that if, in the reasonable judgment of
the Administrative Agent, such failure is curable, no such Event of Default
shall be deemed to have occurred if the Borrower, promptly following notice from
the Administrative Agent, shall take such actions as may be necessary to cure
such failure or cessation; or
(n) There shall occur any Change of Control.
Section 10.2 REMEDIES.
(a) If an Event of Default specified in SECTION 10.1 (other than
an Event of Default under SECTION 10.1(E) or SECTION 10.1(F)) shall have
occurred and shall be continuing, the Administrative Agent, at the request of
the Majority Lenders, shall formally declare that an Event of Default has
occurred and (i) terminate the Revolving Loan Commitments and the Term A Loan
Commitments, as applicable, and (ii) declare the principal of and interest on
the Loans and the Notes and all other amounts owed to the Credit Parties under
this Agreement and the Notes and any other Obligations to be forthwith due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived, anything in this Agreement or in the Notes or any
other Loan Document to the contrary notwithstanding, and the Revolving Loan
Commitments and the Term A Loan Commitments, as applicable, shall thereupon
forthwith terminate and all such amounts shall be immediately due and payable,
and during the continuance of an Event of Default specified in SECTION 10.1(B),
the principal amount of the Loans outstanding hereunder shall bear interest at
the Default Rate applicable thereto.
(b) Upon the occurrence and continuance of an Event of Default
specified in SECTION 10.1(E) or SECTION 10.1(F), all principal, interest and
other amounts due hereunder and under the Notes, and all other Obligations,
shall thereupon and concurrently therewith become due and payable and the
Revolving Loan Commitments and the Term A Loan Commitments, as applicable, shall
forthwith terminate and the principal amount of the Loans outstanding hereunder
shall bear interest at the Default Rate applicable thereto, all without any
91
action by the Administrative Agent, the Lenders or the Majority Lenders, or any
of them, and without presentment, demand, protest or other notice of any kind,
all of which are expressly waived, anything in this Agreement or in the other
Loan Documents to the contrary notwithstanding.
(c) With respect to any outstanding Letters of Credit with respect
to which presentment for honor shall not have occurred at the time of any
acceleration of the Obligations pursuant to this SECTION 10.2, the Borrower
shall (i) upon the occurrence and continuance of an Event of Default specified
in SECTION 10.1(E) or SECTION 10.1(F), concurrently therewith, or (ii) upon the
occurrence and continuance of any other Event of Default, promptly upon demand
by any Issuing Bank, pay to such Issuing Bank an amount equal to one hundred two
percent (102%) of the aggregate undrawn and unexpired amount of each Letter of
Credit issued by such Issuing Bank then outstanding, which cash will be held as
cash collateral by such Issuing Bank for the L/C Obligations and applied to the
payment of drafts drawn under such Letters of Credit and the unused portion
thereof after such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other Obligations hereunder in the
manner set forth in SECTION 10.3.
(d) Upon acceleration of the Loans, as provided in subsection
(a) or (b) of this SECTION 10.2, the Credit Parties shall have all of the
post-default rights granted to them, or any of them, under the Loan Documents
and under Applicable Law.
(e) Upon acceleration of the Loans, as provided in subsection (a)
or (b) of this SECTION 10.2, the Administrative Agent, upon request of the
Majority Lenders, shall have the right to the appointment of a receiver for the
properties and assets of the Borrower and its Restricted Subsidiaries, both to
operate and to sell such properties and assets, and the Borrower, for itself and
on behalf of its Restricted Subsidiaries, hereby consents to such right and such
appointment and hereby waives any objection the Borrower or any Restricted
Subsidiary may have thereto or the right to have a bond or other security posted
by the Administrative Agent, on behalf of the Credit Parties, in connection
therewith.
(f) The rights and remedies of the Credit Parties, or any of them,
hereunder shall be cumulative and not exclusive.
Section 10.3 PAYMENTS SUBSEQUENT TO ACCELERATION OR MATURITY. Subsequent to
the acceleration of the Loans under SECTION 10.2 or the Final Maturity Date,
payments and prepayments under this Agreement made to any of the Credit
Parties or otherwise received by any of such Persons (from realization on
Collateral for the Obligations or otherwise) shall be paid over to the
Administrative Agent (if necessary) and distributed by the Administrative
Agent as follows: FIRST, to the reasonable costs and expenses, if any,
incurred in connection with the collection of such payment or prepayment
including, without limitation, any reasonable costs incurred by any of them in
connection with the sale or disposition of any Collateral for the Obligations;
SECOND, to the Credit Parties for any fees hereunder or under any of the other
Loan Documents then due and payable; THIRD, to the Lenders pro rata on the
basis of their respective unpaid principal amounts, to the payment of any
unpaid interest which may have accrued on the Obligations; FOURTH, to the
Lenders pro rata until all Loans have been paid in full (and, for purposes of
this clause, obligations under Permitted Hedge Agreements with any of the
Lenders shall be deemed to be Loans and shall be paid on a pro rata basis with
the Loans); FIFTH, to the Lenders pro rata on the basis of their respective
unpaid amounts, to the payment of
92
any other unpaid Obligations; SIXTH, to damages incurred by any Credit Party by
reason of any breach hereof or of any other Loan Document; and SEVENTH, upon
satisfaction in full of all Obligations, to the Borrower or as otherwise
required by law. Notwithstanding the foregoing, each Lender may allocate amounts
received by it pursuant to this SECTION 10.3 in its discretion to the various
Obligations held by it.
Section 10.4 REMEDIES WITH RESPECT TO FCC AUTHORIZATIONS. In the event that
the Borrower or its Restricted Subsidiaries should hold any authorizations
issued by the FCC, then notwithstanding anything to the contrary contained in
this Agreement or any of the Loan Documents, the Lenders and their agents
shall not take any action pursuant to this Agreement or the Loan Documents,
which would constitute or result in any assignment of any FCC authorizations
or any transfer of control of the holder of any FCC authorization if such
assignment or transfer of control would require under then existing law
(including the Communications Act) the prior approval of the FCC, without
first obtaining such approval. Notwithstanding the occurrence of an Event of
Default, voting rights in any of the Collateral, to the extent but only to the
extent, it includes the FCC authorizations, shall remain with the Borrower or
its Restricted Subsidiaries unless and until all required consents of the FCC
shall have been obtained for the exercise of voting rights by another entity,
and prior to the exercise of voting rights by a purchaser of such Collateral
at a private or public sale, the prior consent of the FCC pursuant to 47
U.S.C. Section 310(d) or any successor provision of Applicable Law will, if
required, be obtained. Upon the occurrence and during the continuance of an
Event of Default, the Borrower and its Restricted Subsidiaries agree to
cooperate with each of the Credit Parties and their agents in the preparation,
execution and filing of any applications and other documents and providing any
information that may be necessary or helpful in obtaining any consent of the
FCC required for the exercise of the Credit Parties' rights under the Loan
Documents.
ARTICLE 11 - THE AGENTS
Section 11.1 APPOINTMENT AND AUTHORIZATION. Subject only to SECTION 11.13,
each of the Lenders hereby irrevocably appoints and authorizes, and hereby
agrees that it will require any transferee of any of its interest in its Loans
and in its Notes irrevocably to appoint and authorize, each of the Agents to
take such actions as its agent on its behalf and to exercise such powers
hereunder and under the Security Documents as are delegated to such Agents by
the terms hereof and thereof, together with such powers of such Agents as are
reasonably incidental thereto. None of the Agents nor any of their respective
directors, officers, employees or agents shall be liable for any action taken
or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct.
Section 11.2 INTEREST HOLDERS. The Administrative Agent and the other
Agents may treat each Lender, or the Person designated in the last notice filed
with the Administrative Agent under this SECTION 11.2, as the holder of all of
the interests of such Lender in its Loans and in its Note or Notes until written
notice of transfer, signed by such Lender (or the Person designated in the last
notice filed with the Administrative Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent.
Section 11.3 CONSULTATION WITH COUNSEL. The Administrative Agent may
consult with Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, special counsel to the
Administrative Agent, or with other legal counsel selected by them and shall not
be liable for any action taken or
93
suffered by them in good faith in consultation with such counsel, or at the
direction of the Majority Lenders and in reasonable reliance on such
consultations or direction.
Section 11.4 DOCUMENTS. None of the Agents shall be under any duty to
examine, inquire into, or pass upon the validity, effectiveness or genuineness
of this Agreement, any Note, any other Loan Document, or any other instrument,
document or communication furnished pursuant hereto or in connection herewith,
and each of the Agents shall be entitled to assume (absent knowledge to the
contrary) that they are valid, effective and genuine, have been signed or sent
by the proper parties and are what they purport to be.
Section 11.5 AGENTS' AFFILIATES. With respect to the Commitments and the
Loans, the Agents and their respective affiliates shall have the same rights
and powers hereunder and under the other Loan Documents as any other Lender,
and affiliates of any of the Agents may accept deposits from, lend money to
and generally engage in any kind of business with Holdco, any Intermediate
Holdco, the Borrower, any of the Borrower's Subsidiaries or any Affiliates of,
or Persons doing business with, the Borrower, as if they were not affiliated
with such Agent and without any obligation to account therefor.
Section 11.6 RESPONSIBILITY OF THE AGENTS. The duties and obligations of
each of the Agents under this Agreement and the Security Documents are only
those expressly set forth in this Agreement and the Security Documents. Each of
the Agents shall be entitled to assume that no Default has occurred and is
continuing unless it has actual knowledge, or has been notified by the Borrower,
of such fact, or has been notified by a Lender in writing that such Lender
considers that a Default has occurred and is continuing, and such Lender shall
specify in detail the nature thereof in writing. None of the Agents shall be
liable hereunder for any action taken or omitted to be taken except for its own
gross negligence or willful misconduct. The Administrative Agent shall provide
promptly each of the Lenders with copies of such documents received from the
Borrower as such Lender may reasonably request.
Section 11.7 SECURITY DOCUMENTS. The Administrative Agent, as collateral
agent hereunder and under the Security Documents, is hereby authorized to act on
behalf of the Lenders in its own capacity and through other agents and
sub-agents appointed by it with due care, under the Security Documents, provided
that, unless otherwise expressly provided in this Agreement, the Administrative
Agent shall not agree to the release of any Collateral, or any property
encumbered by any mortgage, pledge or security interests except in compliance
with the terms and conditions of this Agreement and the Security Documents. In
connection with its role as secured party with respect to the Collateral
hereunder, the Administrative Agent shall act as collateral agent for the
benefit of the Credit Parties, and such role as collateral agent shall be
disclosed on all appropriate accounts, certificates, filings, mortgages, and
other collateral documentation.
Section 11.8 ACTION BY THE AGENTS.
(a) Each of the Agents shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights which may be
vested in it by, and with respect to taking or refraining from taking any action
or actions which it may be able to take under or in respect of, this Agreement,
unless such Agent shall have been instructed by the Majority Lenders to exercise
or refrain from exercising such rights or to take or refrain from taking such
action; provided that the Administrative Agent shall not exercise any rights
under
94
SECTION 10.2(A) except upon the request of the Majority Lenders. None of the
Agents shall incur any liability under or in respect of this Agreement with
respect to anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or desirable in
the circumstances for the protection of the interests of the Lenders, except for
its gross negligence or willful misconduct, or conduct in breach of this
Agreement as determined by a final, non-appealable order of a court having
jurisdiction over the subject matter.
(b) None of the Agents shall be liable to the Lenders or to any
Lender in acting or refraining from acting under this Agreement or any other
Loan Document in accordance with the instructions of the Majority Lenders (or
all of the Lenders where expressly required by this Agreement), and any action
taken or failure to act pursuant to such instructions shall be binding on all
Lenders.
Section 11.9 NOTICE OF DEFAULT OR EVENT OF DEFAULT. In the event that any
Agent or any Lender shall acquire actual knowledge, or shall have been
notified, of any Default (other than through a notice by one party hereto to
all other parties), such Agent or such Lender, as the case may be, shall
promptly notify the Administrative Agent, and the Administrative Agent shall
take such action and assert such rights under this Agreement and the other
Loan Documents as the Majority Lenders (or all of the Lenders where expressly
required by this Agreement) direct, and the Administrative Agent shall not be
subject to any liability by reason of its acting pursuant to any such request.
If the Majority Lenders shall fail to request the Administrative Agent to take
action or to assert rights under this Agreement in respect of any Default
within ten (10) days after their receipt of the notice of any Default from any
Agent or any Lender, or shall request inconsistent action with respect to such
Default, the Administrative Agent may, but shall not be required to, take such
action and assert such rights (other than rights under Article 10 hereof) as
it deems in its discretion to be advisable for the protection of the Lenders,
except that, if the Majority Lenders have instructed the Administrative Agent
not to take such action or assert such right, in no event shall the
Administrative Agent act contrary to such instructions.
Section 11.10 RESPONSIBILITY DISCLAIMED. None of the Agents shall be under
any liability or responsibility whatsoever as an Agent:
(a) To the Borrower or any other Person as a consequence of any
failure or delay in performance by or any breach by, the Lenders, or any of
them, of any of its or their obligations under this Agreement;
(b) To the Lenders, or any of them, as a consequence of any
failure or delay in performance by, or any breach by, (i) Holdco, Intermediate
Holdco or the Borrower of any of their respective obligations under this
Agreement or the Notes, as applicable, or any other Loan Document, or (ii) any
Subsidiary of the Borrower or any other obligor under any other Loan Document;
or
(c) Except as otherwise expressly set forth herein, to the
Lenders, or any of them, for any statements, representations or warranties in
this Agreement, or any other document contemplated by this Agreement or any
other Loan Document, or any information provided pursuant to this Agreement, any
other Loan Document, or any other document contemplated by this Agreement, or
for the validity, effectiveness, enforceability or sufficiency of this
Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement.
95
Section 11.11 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower and without
limiting the obligations of the Borrower hereunder), pro rata in accordance
with their respective Commitment Ratios, from and against any and all
liabilities, losses, damages, actions, and reasonable fees and expenses of
counsel (as such fees and expenses are incurred), or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of its role as
Administrative Agent under this Agreement, any other Loan Document, or any
other document contemplated by this Agreement or any action taken or omitted
by the Administrative Agent under this Agreement, any other Loan Document, or
any other document contemplated by this Agreement in its role as
Administrative Agent except that none of the Lenders shall be liable to the
Administrative Agent for any portion of such liabilities, losses, damages,
actions, reasonable fees and expenses of counsel or disbursements resulting
from the gross negligence or willful misconduct of the Administrative Agent as
determined by a final, non-appealable order of a court having jurisdiction
over the subject matter.
Section 11.12 CREDIT DECISION. Each of the Lenders represents and warrants
to each other Credit Party that:
(a) In making its decision to enter into this Agreement and to
make its Advances it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of Holdco, any
Intermediate Holdco, the Borrower and the Borrower's Subsidiaries and that it
has made an independent credit judgment, and that it has not relied upon any
other Credit Party or upon information provided by any Agent (other than
information provided to the Administrative Agent by the Borrower and forwarded
by the Administrative Agent to the Lenders); and
(b) So long as any portion of the Obligations remains outstanding,
it will continue to make its own independent evaluation of the financial
condition and affairs of Holdco, any Intermediate Holdco, the Borrower and the
Borrower's Subsidiaries.
Section 11.13 SUCCESSOR AGENTS. Subject to the appointment and acceptance
of a successor Agent as provided below, any Agent may resign at any time by
giving not less than thirty (30) days prior written notice thereof to the
Lenders and the Borrower. Upon any such resignation, the Majority Lenders shall
have the right to appoint a successor Agent with, so long as no Default or Event
of Default then exists, the consent of the Borrower. If no successor Agent shall
have been so appointed by the Majority Lenders with, so long as no Default or
Event of Default then exists, the consent of the Borrower, and shall have
accepted such appointment within thirty (30) days after the retiring Agent gives
notice of resignation, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent which shall be any existing Lender or a commercial
bank organized under the laws of the United States of America or any political
subdivision thereof which has combined capital and reserves in excess of
$500,000,000. Upon the acceptance of any appointment as an Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges, duties and obligations of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as an Agent. The resignation of an Agent may not take effect until a successor
Agent is appointed.
96
Section 11.14 AGENTS. None of the Lenders identified on the facing page of,
signature pages of or elsewhere in this Agreement as an "arranger," "joint
book runner," "co-documentation agent" or "syndication agent" shall have any
right, power, obligation, liability, responsibility or duty under this
Agreement or any other Loan Document other than those applicable to all
Lenders as such. Without limiting the foregoing, none of the Lenders so
identified shall have or be deemed to have any fiduciary relationship with any
other Lender. Each Lender acknowledges that it has not relied, and will not
rely, on any of the Lenders so identified in deciding to enter into this
Agreement or any other Loan Document or in taking or not taking action
hereunder or thereunder.
ARTICLE 12 - Change in Circumstances
Affecting Eurodollar Advances
Section 12.1 EURODOLLAR BASIS DETERMINATION INADEQUATE OR UNFAIR. If with
respect to any proposed Eurodollar Advance for any Eurodollar Advance Period,
the Administrative Agent determines after consultation with the Lenders that
the Eurodollar Rate will not reflect the cost to each Lender of maintaining
such Eurodollar Advance for such Eurodollar Advance Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the circumstances giving rise to such situation no longer
exist, the obligations of any affected Lender to make Eurodollar Advances
shall be suspended.
Section 12.2 ILLEGALITY. If, after the Agreement Date, the adoption of any
Applicable Law, or any change in any Applicable Law, or any change in
interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any directive
(whether or not having the force of law) of any such authority, central bank
or comparable agency, shall make it unlawful or impossible for any Lender to
make, maintain or fund Eurodollar Advances, such Lender shall so notify the
Administrative Agent, and the Administrative Agent shall forthwith give notice
thereof to the other Lenders and the Borrower. Before giving any notice to the
Administrative Agent pursuant to this SECTION 12.2, such Lender shall
designate a different lending office if such designation will avoid the need
for giving such notice and will not, in the sole judgment of such Lender, be
otherwise materially disadvantageous to such Lender. Upon receipt of such
notice, notwithstanding anything contained in Article 2, the Borrower shall
repay in full the then outstanding principal amount of each Eurodollar Advance
of such Lender, together with accrued interest thereon and any reimbursement
required under SECTION 2.10, on either (a) the last day of the then current
Eurodollar Advance Period applicable to such affected Eurodollar Advances if
such Lender may lawfully continue to maintain and fund such Eurodollar
Advances to such day or (b) immediately if such Lender may not lawfully
continue to fund and maintain such affected Eurodollar Advances to such day.
Concurrently with repaying each affected Eurodollar Advance of such Lender,
notwithstanding anything contained in Article 2 or Article 4, the Borrower may
borrow a Base Rate Advance from such Lender, and such Lender shall make such
Advance, if so requested, in an amount such that the outstanding principal
amount of the Loans held by such Lender shall equal the outstanding principal
amount of such Loans immediately prior to such repayment.
Section 12.3 INCREASED COSTS.
97
(a) If, after the Agreement Date, the adoption of any Applicable
Law, or any change in any Applicable Law, or any interpretation or change in
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof or compliance by any Lender with any directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) shall subject any Lender to any tax, duty or other
charge with respect to its obligation to make Eurodollar Advances, or shall
change the basis of taxation of payments to any Lender of the principal of or
interest on its Eurodollar Advances or in respect of any other amounts due under
this Agreement, in respect of its Eurodollar Advances or its obligation to make
Eurodollar Advances (except for changes in the rate or method of calculation of
tax on the overall net income of such Lender, Excluded Taxes and Non-Excluded
Taxes covered by SECTION 2.13(A)); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding any included in an applicable Eurodollar
Reserve Percentage), special deposit, capital adequacy, assessment or other
requirement or condition against assets of, deposits with or for the account of,
or commitments or credit extended by, any Lender in respect of Eurodollar
Advances or shall impose on any Lender or the London interbank borrowing market
any other condition affecting its obligation to make Eurodollar Advances or its
Eurodollar Advances;
and the result of any of the foregoing is to increase the cost to such Lender
of making or maintaining any such Eurodollar Advances, or to reduce the amount
of any sum received or receivable by such Lender under this Agreement or under
its Note with respect thereto, then, within five (5) days after demand by such
Lender, the Borrower agrees to pay to such Lender such additional amount or
amounts as will compensate such Lender for such increased costs; PROVIDED,
HOWEVER, that notwithstanding the foregoing, the Borrower shall have no
obligation to make any such payment in respect of any such costs incurred more
than ninety (90) days prior to its receipt of notice from such Lender;
PROVIDED, HOWEVER, that if the event giving rise to such additional cost has a
retroactive effect, then such ninety (90) day period shall be extended to
include that period of retroactive effect. Each Lender will promptly notify
the Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this SECTION 12.3 and will designate a different
lending office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender.
(b) Any Lender claiming compensation under this SECTION 12.3
shall provide the Borrower with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail. Such certificate shall be conclusive, absent
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods. If any Lender demands compensation under this
SECTION 12.3, the Borrower may at any time, upon at least five (5) Business
Days' prior notice to such Lender, prepay in full the then outstanding
Eurodollar Advances of such Lender, together with accrued interest thereon to
the date of prepayment, along with any reimbursement required under SECTION
2.10. Concurrently with prepaying such Eurodollar Advances and
98
notwithstanding anything to the contrary contained in Article 2 or SECTION 4.2,
the Borrower may borrow a Base Rate Advance from such Lender, and such Lender
shall, if so requested, make such Advance in an amount such that the outstanding
principal amount of the Loans held by such Lender shall equal the outstanding
principal amount of such Loans immediately prior to such prepayment.
Section 12.4 EFFECT ON OTHER ADVANCES.
(a) If notice has been given pursuant to SECTION 12.1, 12.2 or
12.3 suspending the obligation of any Lender to make Eurodollar Advances, or
requiring Eurodollar Advances of any Lender to be converted, repaid or prepaid,
then, unless and until the circumstances giving rise to such repayment no longer
apply, all Advances which would otherwise be made by such Lender as Eurodollar
Advances affected shall be made instead as Base Rate Advances.
(b) Within sixty (60) days after written notice pursuant to
SECTION 12.1, 12.2 or 12.3 by any Lender, the Borrower may, in its discretion,
provide a replacement lender or lenders for such Lender, which replacement
lender or lenders will be subject to the approval of the Administrative Agent,
which, so long as there exists no Default or Event of Default, shall not be
unreasonably withheld, and the Administrative Agent, such Lender and the
Borrower shall take all necessary actions to transfer the rights, duties and
obligations of such Lender to such replacement lender or lenders within such
sixty (60) day period (including, without limitation, the payment in full of all
Obligations hereunder due to the Lender being replaced, which shall include the
increased costs that the Lender is entitled to receive pursuant to SECTION 12.1,
12.2 or 12.3, as applicable, through the date of transfer; provided that the
Borrower shall not have the right to replace such Lender if such Lender rescinds
its demand for compensation hereunder within five (5) days of its notice of
replacement).
ARTICLE 13 - MISCELLANEOUS
Section 13.1 NOTICES.
(a) Unless otherwise specifically provided herein, all notices
and other communications under this Agreement shall be in writing and shall be
deemed to have been given five (5) days after deposit in the mail, designated as
certified mail, return receipt requested, postage-prepaid, or one (1) Business
Day after being entrusted to a reputable commercial overnight delivery service,
or when sent by telecopy addressed to the party to which such notice is directed
at its address determined as provided in this SECTION 13.1. All notices and
other communications under this Agreement shall be given to the parties hereto
at the following addresses:
(i) If to the Borrower, to it at:
SpectraSite Communications, Inc.
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy No.: (000) 000-0000
99
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(ii) If to the Administrative Agent, to each of them at:
Toronto Dominion (Texas) LLC
00 Xxxx Xxxxxx Xxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attention: Manager, Syndications and Credit
Administration
Telecopy No.: (000) 000-0000
with a copy to:
TD Securities (USA) LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telecopy No.: (000) 000-0000
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000
(iii) If to the Lenders, to them at the addresses set
forth beside their names on the Lender Addendum with respect thereto or in an
Assignment and Assumption Agreement.
(b) Copies shall be provided to Persons other than the parties
hereto only in the case of notices under Article 10.
(c) Any party hereto may change the address to which notices shall
be directed under this SECTION 13.1 by giving ten (10) days' written notice of
such change to the other parties.
Section 13.2 EXPENSES. The Borrower shall promptly pay or reimburse:
(a) all reasonable legal expenses of the Administrative Agent
and all reasonable other out-of-pocket expenses of the Administrative Agent
incurred in connection with the preparation, negotiation, execution and delivery
of this Agreement and the other Loan Documents, and the transactions
contemplated hereunder and thereunder and the making of the initial Advance
hereunder (whether or not such Advance is made), including, but not limited to,
100
the reasonable fees and disbursements of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP,
special counsel for the Administrative Agent;
(b) all reasonable legal expenses of the Administrative Agent
and all other reasonable out-of-pocket expenses of the Lead Arrangers in
connection with the syndication of the Loans;
(c) all reasonable legal expenses of the Administrative Agent
and all other reasonable out-of-pocket expenses of the Administrative Agent in
connection with the administration of the transactions contemplated in this
Agreement or the other Loan Documents, and all other reasonable expenses of the
Administrative Agent customarily reimbursed by borrowers for transactions of
similar size, type and purpose as such transactions; and
(d) from and after the occurrence of an Event of Default, all
reasonable legal and other out-of-pocket expenses of the Lead Arrangers and the
Lenders incurred in connection with any restructuring or "work out" of, or
Insolvency Proceeding of Holdco, any Intermediate Holdco, the Borrower or any
Restricted Subsidiary relating to, the transactions contemplated by this
Agreement or the other Loan Documents, and the preparation, negotiation,
execution and delivery of any waiver, amendment or consent by the Lead Arrangers
and the Lenders relating to this Agreement or the other Loan Documents,
including, but not limited to, the fees and disbursements of any experts, agents
or consultants and of counsel for the Administrative Agent, and any exercise by
any of the Lead Arrangers or the Lenders of their respective remedies provided
for in this Agreement or the other Loan Documents.
Section 13.3 WAIVERS. The rights and remedies of the Agents and the Lenders
under this Agreement and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which they would otherwise have. No
failure or delay by the Agents, the Majority Lenders or the Lenders, or any of
them, in exercising any right shall operate as a waiver of such right. The
Agents and the Lenders expressly reserve the right to require strict
compliance with the terms of this Agreement in connection with any future
funding of a request for an Advance. In the event the Lenders decide to fund
an Advance at a time when the Borrower is not in strict compliance with the
terms of this Agreement, such decision by the Lenders shall not be deemed to
constitute an undertaking by the Lenders to fund any further Advances or to
preclude the Lenders or the Agents from exercising any rights available to
them under the Loan Documents or at law or equity. Any waiver or indulgence
granted by the Agents, the Majority Lenders or Lenders shall not constitute a
modification of this Agreement, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of dealing at variance with
the terms of this Agreement such as to require further notice of their intent
to require strict adherence to the terms of this Agreement in the future.
Section 13.4 SET-OFF. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, the
Agents and the Lenders and their respective Affiliates are hereby authorized by
Holdco, any Intermediate Holdco and the Borrower at any time or from time to
time, without notice to Holdco, any Intermediate Holdco, the Borrower or to any
other Person, any such notice being hereby expressly waived, to set-off and to
appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Lender or any Agent
101
or any of their respective Affiliates to or for the credit or the account of
Holdco, any Intermediate Holdco, the Borrower or any of its Restricted
Subsidiaries against and on account of the Obligations irrespective of whether
(a) the Lenders and the Agents, or any of them, shall have made any demand
hereunder or (b) the Administrative Agent shall have declared the principal of
and interest on the Loans and other amounts due hereunder to be due and payable
as permitted by SECTION 10.2 and although all or any of such Obligations shall
be contingent or unmatured. The Agent or Lender or Affiliate which has effected
such set-off and application of proceeds shall endeavor to promptly notify the
Borrower thereof, but the failure to give such notice shall not affect the
validity of such set-off or application. Upon direction by the Administrative
Agent, with the consent of the Majority Lenders, each Lender and each Affiliate
of a Lender holding deposits of Holdco, any Intermediate Holdco, the Borrower or
any of its Restricted Subsidiaries shall exercise its set-off rights as so
directed.
Section 13.5 SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of Holdco, any Intermediate Holdco, the Borrower and the
Credit Parties and their respective successors and assigns, except that neither
the Borrower nor Holdco nor any Intermediate Holdco may assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Lender (and any attempted assignment or transfer by Holdco, any
Intermediate Holdco or the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns and, to the extent expressly contemplated hereby, the
Affiliates of each of the Credit Parties) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may, without the consent of the Borrower or the
Administrative Agent, at any time sell, to one or more banks or other entities
("PARTICIPANTS") participating interests in all or a portion of the rights and
obligations of such Lender under this Agreement (including, without limitation,
all or a portion of such Lender's Loans, L/C Obligations and Commitments
outstanding hereunder). In the event of any such sale by a Lender of a
participating interest to a Participant, (i) such Lender's obligations under
this Agreement to the other parties to this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible for the performance thereof,
(iii) such Lender shall remain the holder of any such Loan for all purposes
under this Agreement and the other Loan Documents, and (iv) the Borrower and the
other Credit Parties shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents. No Lender shall be entitled to create in favor of any
Participant, in the participation agreement pursuant to which such Participant's
participating interest shall be created or otherwise, any right to vote on,
consent to or approve any matter relating to this Agreement or any other Loan
Document except for those matters specified as requiring the consent of all
Lenders in SECTION 13.12. The Borrower agrees that upon the occurrence and
during the continuance of an Event of Default, each Participant shall, to the
maximum extent permitted by Applicable Law, be deemed to have the right of
set-off in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement; PROVIDED that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in SECTION
2.11(B) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of
102
SECTION 2.12 and Article 12 of this Agreement with respect to its participation
in the Commitments and the Loans outstanding from time to time as if it were a
Lender; PROVIDED, FURTHER, that, in the case of SECTION 2.12, such Participant
shall have complied with the requirements of such Section, and PROVIDED,
FURTHER, that no Participant shall be entitled to receive any greater amount
pursuant to any such Section than the transferor Lender would have been entitled
to receive in respect of the amount of the participation transferred by such
transferor Lender to such Participant had no such transfer occurred.
(c) With respect to each type of Commitment and each type of
Loans outstanding under this Agreement, any Lender may assign to one or more
Lenders holding the same type of Commitment or Loans, as applicable, or
affiliates of any such Lender or Approved Funds of any such Lender, or to any
other Person with the consent of the Administrative Agent and, so long as no
Default exists hereunder, the Borrower (which in each case shall not be
unreasonably withheld or delayed), to one or more other Eligible Assignees, all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of such assigning Lender's Loans, L/C
Obligations and Commitments outstanding hereunder); PROVIDED that (i) except in
the case of an assignment of the entire remaining amount of the assigning
Lender's Loans, L/C Obligations and Commitments hereunder or in the case of an
assignment to a Lender or an affiliate of a Lender or an Approved Fund of any
Lender, (A) the aggregate amount of the Loans, L/C Obligations and Commitments
of the assigning Lender subject to each such assignment (determined as of the
date the Assignment and Assumption Agreement with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000, and
(B) after giving effect to any such assignment, the aggregate amount of the
assigning Lender's the Loans, L/C Obligations and Commitments hereunder shall
not be less than $1,000,000, unless in any such case each of the Administrative
Agent and, so long as no Default exists hereunder, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed), (ii)
each partial assignment shall be made as an assignment of a proportionate part
of all of the assigning Lender's rights and obligations under this Agreement
with respect to the type of Commitment or Loan being assigned, except that this
clause (ii) shall not prohibit any Lender from assigning all or a portion of its
rights and obligations among separate types of Commitments or Loans on a non-pro
rata basis, and (iii) the parties to each assignment shall execute and deliver
to the Administrative Agent an Assignment and Assumption Agreement executed by
the applicable Assignee and assigning Lender (and, in the case of an Assignee
that is not then a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, by the Administrative Agent and, so long as no Default
exists hereunder, the Borrower), together with a processing and recordation fee
of $3,500 (except that in the case of assignments on the same day by a Lender to
more than one fund managed or advised by the same investment advisor, only a
single $3,500 fee shall be payable for all such assignments by such Lender to
such funds), and each Eligible Assignee shall deliver to the Administrative
Agent a completed administrative questionnaire in the form required by the
Administrative Agent and all tax forms, certifications and other documents
required to be provided by such Eligible Assignee as a Lender hereunder. Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (d) of this SECTION 13.5, from and after the effective date specified
in each Assignment and Assumption Agreement, (x) the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
under such Assignment and Assumption Agreement, have the rights and obligations
of a Lender under this Agreement with respect to the Loans and Commitments set
forth in such Assignment and Assumption Agreement, PROVIDED that no Eligible
Assignee, including an Eligible Assignee that
103
is already a Lender hereunder at the time of assignment, shall be entitled to
receive any amount pursuant to SECTION 2.13 greater than the amount the
assigning Lender would have been entitled to receive had no such assignment
occurred, and (y) the assigning Lender thereunder shall, to the extent of the
interest assigned under such Assignment and Assumption Agreement, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Assumption Agreement covering all of the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto but shall nonetheless continue to be entitled
to the benefits of, and subject to the obligations set forth in, SECTIONS 2.11,
2.13, 2.14, 6.10, 11.11, 12.3 and 13.2 hereof). Any assignment or transfer by a
Lender of its rights or obligations under this Agreement that does not comply
with this SECTION 13.5(C) shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (b) of this SECTION 13.5.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in SECTION 13.1,
a copy of each Assignment and Assumption Agreement delivered to it and a
register (the "REGISTER") for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts of the Loans owing to,
each Lender from time to time (whether or not evidenced by a Note). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Assumption Agreement, and thereupon one or more new Notes in the
same aggregate principal amount shall be issued to the designated Assignee and
the old Note shall be returned by the Administrative Agent to the Borrower
marked "canceled". The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower and the Credit Parties shall treat
each Person whose name is recorded in the Register as the owner of a Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Loan Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation (whether or not
evidenced by a Note) hereunder shall be effective only upon appropriate entries
with respect thereto being made in the Register. The Register shall be available
for inspection by the Borrower or any Credit Party at any reasonable time and
from time to time upon reasonable prior notice.
(e) The Borrower hereby authorizes each Lender to disclose to
any Participant or Eligible Assignee (each a "TRANSFEREE") and any prospective
Transferee, subject to such Person agreeing to comply with the provisions of
SECTION 13.17, any and all financial and other information in such Lender's
possession concerning the Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrower in connection with such Lender's
credit evaluation of the Borrower and its Affiliates prior to becoming a party
to this Agreement.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure the
obligations of such Lender, including, without limitation, any pledge or
assignment to secure obligations to a Federal Reserve Bank; PROVIDED that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations under this Agreement or substitute any such pledgee or
assignee for such Lender as a party hereto. In the case of any Lender that is a
fund that invests in bank loans, such Lender may, without the consent of the
Borrower or the Administrative Agent, assign or pledge all or any portion of its
Notes or any other instrument evidencing its rights as a
104
Lender under this Agreement to any trustee for, or any other representative of,
holders of obligations owed or securities issued, by such fund, as security for
such obligations or securities; PROVIDED that any foreclosure or similar action
by such trustee or representative shall be subject to the provisions of this
SECTION 13.5 regarding assignments.
(g) Any Person purchasing a participation or an assignment of
Loans from any Lender shall be required to represent and warrant that its
purchase shall not constitute a "prohibited transaction" (as defined in SECTION
5.1(M)).
(h) Each Lender agrees to provide the Administrative Agent and the
Borrower with prompt written notice of any issuance of assignments of its
interests hereunder.
(i) No assignment, participation or other transfer of any rights
by any Lender hereunder or under the Notes shall be affected that would result
in any interest requiring registration under the Securities Act, or
qualification under any state securities law.
(j) No such assignment may be made to any Lender or other
financial institution (x) with respect to which a receiver or conservator
(including, without limitation, the Federal Deposit Insurance Corporation or the
Office of Thrift Supervision) has been appointed or (y) that is not "adequately
capitalized" (as such term is defined in Section 131(b)(1)(B) of the Federal
Deposit Insurance Corporation Improvement Act as in effect on the Agreement
Date).
(k) Notwithstanding anything to the contrary contained herein,
any Lender (a "GRANTING LENDER") may grant to a special purpose funding vehicle
("SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Advance that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that, at the time such transfer is made, one of the Agents or the
Lenders shall be the liquidity provider and/or the administrator of such SPC;
provided further that (i) nothing herein shall constitute a commitment by any
SPC to make any Advance; (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Advance, the Granting Lender
shall be obligated to make such Advance pursuant to the terms hereof, and the
Granting Lender shall be liable hereunder generally for all acts and omissions
of such SPC as if such acts and omissions were committed by the Granting Lender;
(iii) an SPC shall have no rights or benefits under this Agreement or any Note
or any other Loan Document, with its rights against the Granting Lender being as
set forth in any agreements between such SPC and the Granting Lender, and an SPC
shall not constitute a "Lender" hereunder; (iv) all amounts payable by any
Credit Party to the Granting Lender shall be determined as if the Granting
Lender had not granted such option, and as if the Granting Lender were funding
each of its Advances and its share of the Commitments in the same way that it is
funding the portion of such Advances and its share of the Commitments in which
no such option has been granted; and (v) in no event shall the Granting Lender
agree with an SPC to take or refrain from taking any action under this Agreement
or any Note or any other Loan Document, except that the Granting Lender may
agree with an SPC that it will not, without the consent of such SPC, agree to
any modification, supplement or waiver of this SECTION 13.5(K). The making of an
Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Advance were made by such Granting Lender.
Each party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). In furtherance of the foregoing, each party
hereto
105
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior Indebtedness of any SPC, it
will not institute against, or join any other person in instituting against,
such SPC any Insolvency Proceeding. In addition, notwithstanding anything to the
contrary in this SECTION 13.5, any SPC may (I) with notice to, but without the
prior written consent of, the Borrower and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its interests in
any Advances to the Granting Lender or to any financial institutions (consented
to by the Borrower and the Administrative Agent) providing liquidity and/or
credit support to or for the account of such SPC to support the funding or
maintenance of Advances, and (II) disclose on a confidential basis any
non-public information relating to its Advances to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity
enhancement to such SPC (each, a "CREDIT SUPPORT PROVIDER"), provided that the
applicable rating agency or Credit Support Provider agrees in writing for the
benefit of the Borrower to keep such information confidential. As this Section
applies to any particular SPC, this Section may not be amended without the
written consent of such SPC.
Section 13.6 ACCOUNTING PRINCIPLES. Except as set forth in the following
sentence, references in this Agreement to GAAP shall be to such principles as
in effect from time to time, and all accounting terms used herein without
definition shall be used as defined under GAAP. All financial calculations
hereunder shall, unless otherwise stated, be determined for the Borrower on a
consolidated basis with its Restricted Subsidiaries.
Section 13.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same
instrument. In proving this Agreement or any other Loan Document in any
judicial proceedings, it shall not be necessary to produce or account for more
than one such counterpart signed by the party against whom such enforcement is
sought. Any signatures delivered by a party by facsimile or email transmission
shall be deemed an original signature hereto.
Section 13.8 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN NEW YORK AND WITHOUT
REFERENCE TO THE CONFLICTS OR CHOICE OF LAWS PRINCIPLES THEREOF.
Section 13.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 13.10 INTEREST.
(a) In no event shall the amount of interest due or payable
hereunder or under the Notes exceed the maximum rate of interest allowed by
Applicable Law, and in the event any such payment is inadvertently made by the
Borrower or inadvertently received by any Lender then such excess sum shall be
credited as a payment of principal, unless the Borrower shall notify the
Administrative Agent or such Lender, as applicable, in writing that it elects to
106
have such excess returned forthwith. It is the express intent hereof that the
Borrower not pay and the Lenders not receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may legally be paid by the
Borrower under Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base Rate and
the Eurodollar Rate as reference rates for the determination of interest on the
Loans, the Lenders shall be under no obligation to obtain funds from any
particular source in order to charge interest to the Borrower at interest rates
related to such reference rates.
Section 13.11 HEADINGS. Headings used in this Agreement are for convenience
only and shall not in any way modify or amend any of the terms or provisions
hereof nor be used in connection with the interpretation of any provision
hereof.
Section 13.12 AMENDMENT AND WAIVER. Neither this Agreement nor any other
Loan Document (other than Permitted Hedge Agreements), nor any term hereof or
thereof, may be amended orally, nor may any provision hereof or thereof be
waived orally, but only by an instrument in writing signed by (or, in the case
of Security Documents executed by the Administrative Agent signed by the
Administrative Agent and approved by) the Majority Lenders and by the Borrower,
except that (a) any increase in the amount of the Commitments of any Lender
shall require the consent of such Lender, and (b) in the event of (i) any delay
or extension in the terms of repayment or change in the order of application of
repayment of the Loans provided in SECTION 2.6 or any change in the
reimbursement obligations under any Letter of Credit, (ii) any reduction in
principal, interest or fees due hereunder or any delay in paying interest or
fees hereunder, (iii) any release of any substantial portion of the Collateral
for the Loans other than a release of any portion of the Collateral in
connection with a Permitted Disposition, (iv) any waiver of any Default due to
the failure by the Borrower to pay any sum due to any of the Lenders hereunder,
(v) any release of any Guaranty (or any guarantor thereunder) of all or any
portion of the Obligations other than a release of any Guaranty in connection
with a Permitted Disposition, (vi) any amendment, whether direct or indirect, of
this SECTION 13.12, or of the definition of "Majority Lenders", or, except in
connection with the implementation of any Incremental Facility to the extent
necessary to accord the various types of Incremental Facility Loans treatment
similar to the treatment accorded Loans of a similar type thereunder, of any
portion of SECTIONS 2.9(C), 6.10, 10.3 or Article 12 as they relate to the
relative priority of payment among the Obligations, or (vii) any other provision
of this Agreement or any of the other Loan Documents specifically requiring the
consent or approval of each of the Lenders, any such amendment or waiver or
consent may be made only by an instrument in writing signed by (or, in the case
of Security Documents executed by the Administrative Agent, signed by the
Administrative Agent and approved by) each of the Lenders affected thereby and
by the Borrower. Any amendment to any provision hereunder, or any waiver or
consent with respect thereto, governing the rights, obligations, or liabilities
of the Administrative Agent in its capacity as such, may be made only by an
instrument in writing signed by the Administrative Agent and by each of the
Lenders. Notwithstanding the foregoing, in the event that any amendment to any
provision hereunder, or any waiver or consent with respect thereto, shall
require the approval of a greater percentage of the Lenders than Majority
Lenders and any Lender fails to provide such approval, the Borrower may, in its
discretion, provide a replacement lender or lenders for such non-approving
Lender, which replacement lender or lenders will be subject to the approval of
the Administrative Agent, such non-approving Lender and the Borrower shall take
all necessary actions to transfer promptly the rights, duties and obligations of
such non-approving Lender to such replacement lender or lenders (including,
without limitation,
107
the payment in full of all Obligations hereunder due to the non-approving Lender
being replaced).
Section 13.13 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement and the other documents described or contemplated herein
embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 13.14 OTHER RELATIONSHIPS. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of any Credit
Party or any of their respective Affiliates to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 13.15 LOAN DOCUMENTS. The Indebtedness of the Borrower evidenced by
the Loans is secured by the Security Documents and is intended by the parties
hereto to be in parity with the Permitted Hedge Agreements in effect from time
to time between the Borrower and any Lender and senior in right of payment to
all other Borrower Debt except to the extent expressly contemplated hereby.
Section 13.16 RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS. All covenants,
agreements, statements, representations and warranties made herein or in any
certificate delivered pursuant hereto (a) shall be deemed to have been relied
upon by each of the Agents and each of the Lenders notwithstanding any
investigation heretofore or hereafter made by them, and (b) shall survive the
execution and delivery of this Agreement and the other Loan Documents and
shall continue in full force and effect so long as any of the Obligations are
outstanding and unpaid. Any right to indemnification hereunder, including,
without limitation, rights pursuant to SECTIONS 2.10, 2.12, 2.13, 2.14, 6.10,
11.11, 12.3 and 13.2, shall survive the termination of this Agreement and the
payment and performance of all of the Obligations.
Section 13.17 CONFIDENTIALITY. All agreements, instruments, documents and
other information received pursuant to this Agreement or any other Loan
Document by the Credit Parties shall be held in confidence by the Credit
Parties, except for disclosures made (a) in connection with assignments of or
participations in the Loans made pursuant to SECTION 13.5 (provided that such
assignees or participants shall agree in writing to keep such information
confidential as provided herein), (b) as otherwise required to be disclosed by
banking regulations, process of law or other Applicable Law, or to government
regulators, (c) of information received by a Credit Party without restriction
as to its disclosure or use from a Person who, to such Credit Party's
knowledge or reasonable belief, was not prohibited from disclosing it by any
duty of confidentiality, (d) in connection with litigation arising from this
Agreement or any other Loan Document to which a Credit Party is a party, (v)
of information which is or has become public (other than through unauthorized
disclosure by any Credit Party), (vi) to the attorneys, accountants, and other
expert consultants (including rating agencies) for any Credit Party (who shall
be requested to similarly hold such information in confidence), (vii) to any
pledgee referred to in SECTION 13.5(F) or any direct or indirect contractual
counterparty of a Lender in connection with a swap agreement or such
contractual counterparty's professional advisor so long as such pledgee or
such contractual counterparty or professional advisor, as the case may be,
agrees in writing to be bound by the provisions of this SECTION 13.17, (viii)
to the National Association of Insurance Commissioners or any similar
organization or any nationally
108
recognized rating agency that requires access to information about a Lender's
investment portfolio in connection with ratings issued with respect to such
Lender, or (ix) as otherwise permitted hereunder.
Section 13.18 DELIVERY OF LENDER ADDENDA. Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, the Borrower and the Administrative
Agent.
ARTICLE 14 - WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION.
Section 14.1 WAIVER OF JURY TRIAL. EACH OF THE CREDIT PARTIES, HOLDCO,
INTERMEDIATE HOLDCO (IF ANY) AND THE BORROWER, FOR ITSELF AND ON BEHALF OF
EACH OF ITS RESTRICTED SUBSIDIARIES, HEREBY WAIVES THE RIGHT TO A TRIAL BY
JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH ANY OF
THE CREDIT PARTIES, HOLDCO, INTERMEDIATE HOLDCO (IF ANY), THE BORROWER OR ANY
OF ITS RESTRICTED SUBSIDIARIES, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS, IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS AND THE
RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 14.1.
Section 14.2 CONSENT TO JURISDICTION. EACH OF THE CREDIT PARTIES, HOLDCO,
INTERMEDIATE HOLDCO (IF ANY) AND THE BORROWER, FOR ITSELF AND ON BEHALF OF
EACH OF ITS RESTRICTED SUBSIDIARIES, AGREES THAT ANY SUIT FOR THE ENFORCEMENT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING THEREIN AND EACH
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY CERTIFIED OR
REGISTERED MAIL AT THE ADDRESS SPECIFIED IN SECTION 13.1. THE BORROWER HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
109
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered as of the date first above written.
BORROWER: SPECTRASITE COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President-Finance
and Treasurer
HOLDCO: SPECTRASITE, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President-Finance
and Treasurer
LEAD ARRANGERS: TD SECURITIES (USA) LLC
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President and Director
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx X. Judge
--------------------------------
Name: Xxxx X. Judge
Title: Vice President
JOINT BOOK RUNNERS: TD SECURITIES (USA) LLC
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President and Director
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx X. Judge
--------------------------------
Name: Xxxx X. Judge
Title: Vice President
DEUTSCHE BANK SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Managing Director
CO-ARRANGERS AND
CO-DOCUMENTATION AGENTS: DEUTSCHE BANK SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Managing Director
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
SYNDICATION AGENT: CITICORP N.A., INC.
By: /s/ Xxxx X. Judge
--------------------------------
Name: Xxxx X. Judge
Title: Vice President
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS) LLC
By: /s/ Xxx Xxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxx
Title: Authorized Signatory
EXHIBITS
Exhibit A Form of Assignment and Assumption Agreement
Exhibit B Form of Borrower Pledge Agreement
Exhibit C Form of Borrower Security Agreement
Exhibit D Form of Compliance Certificate
Exhibit E Form of Holdco Pledge Agreement
Exhibit F Form of Incremental Facility Note
Exhibit G Form of Intellectual Property Security Agreement
Exhibit H Form of Lender Addendum
Exhibit I Copy of Nextel Intercreditor Agreement
Exhibit J Form of Notice of Conversion/Continuation
Exhibit K Form of Request for Advance
Exhibit L Form of Request for Issuance of Letter of Credit
Exhibit M Form of Revolving Loan Note
Exhibit N Form of Subsidiary Guaranty
Exhibit O Form of Subsidiary Pledge Agreement
Exhibit P Form of Subsidiary Security Agreement
Exhibit Q Form of Term A Loan Note
Exhibit R Form of Term B Loan Note
Exhibit S Form of Subsidiary Questionnaire
SCHEDULES
Schedule 5.1(c) Capitalization
Schedule 5.1(h) Title to Assets
Schedule 5.1(i) Litigation
Schedule 5.1(m) ERISA
Schedule 5.1(q) Intellectual Property
Schedule 5.1(s) Agreements with Affiliates
Schedule 5.1(t) Environmental Matters
Schedule 5.1(u) Labor Matters
Schedule 5.1(x) Investments
Schedule 5.1(y) Material Contracts
