Exhibit 10.4
FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT is
dated as of the day of June 29, 1998 (this "First Amendment"), and entered into
among PINNACLE TOWERS INC., a Delaware corporation (the "Borrower"), the Lenders
signatory hereto, NATIONSBANK, N.A., a national banking association,
individually and as Administrative Lender (in such latter capacity, the
"Administrative Lender"), and XXXXXXX XXXXX CREDIT PARTNERS L.P., as Syndication
Agent (the "Syndication Agent").
WITNESSETH:
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WHEREAS, the Borrower, the Administrative Lender, the Syndication Agent,
and Lenders entered into a Third Amended and Restated Credit Agreement, dated as
of May 29, 1998 (as amended, restated, or otherwise modified from time to time,
the "Credit Agreement");
WHEREAS, the Lenders, the Borrower, the Administrative Lender, and the
Syndication Agent have agreed to amend the Credit Agreement to make certain
changes to the terms therein upon the terms and conditions set forth below;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
Borrower, the Lenders, the Administrative Lender, and the Syndication Agent
agree as follows:
SECTION 1. Definitions. Unless specifically defined or redefined below,
capitalized terms used herein shall have the meanings ascribed thereto in the
Credit Agreement.
SECTION 2. Amendment to the definition of "Earn-Out Liability". The
definition of ""Earn-Out Liability" in Article I is amended in its entirety as
follows:
"Earn-Out Liability" means, with respect to the Borrower and its
Subsidiaries, any unsecured contingent liability of the Borrower or any
Subsidiary of the Borrower incurred in connection with any Permitted
Acquisition, which such contingent liability (a) constitutes a portion of
the purchase price for the property acquired but is not an amount certain,
(b) is only payable based on the performance of the acquired property and
in an amount based only on the performance of the acquired property and
(c) is not subject to any acceleration right.
SECTION 3. Amendment to the definition of "Eligible Assignee". The
definition of "Eligible Assignee" in Article I is amended in its entirety as
follows:
"Eligible Assignee" means any Bank Affiliate and any (a) commercial
bank organized under the laws of the United States, or any state thereof,
and having total assets
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in excess of $1,000,000,000; (b) savings and loan association or savings
bank organized under the laws of the United States, or any state thereof,
having total assets in excess of $1,000,000,000, and not in receivership or
conservatorship; (c) commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of any such country, and having
total assets in excess of $1,000,000,000, provided that such bank is acting
through a branch or agency located in the country in which it is organized
or another country which is described in this clause; (d) central bank of
any country which is a member of the Organization for Economic Cooperation
and Development; and (e) any other Person approved by the Administrative
Lender, which approval will not be unreasonably withheld.
SECTION 4. Amendment to Section 2.18(f). Subsection 2.18(f) of the Credit
Agreement is amended in its entirety as follows:
(f) Upon satisfaction of each of the conditions precedent in this
Section 2.18, the Borrower shall be entitled to increase the Available
Commitment not more than five times, in an aggregate amount for such
increases not to exceed the Unavailable Commitment . Each Lender
specified by the Borrower shall have received not less than twenty
days' prior written notice from the Borrower requesting such Available
Commitment increase. Each such Lender electing to participate in such
Available Commitment increase shall commit to an amount not less than
$5,000,000, but shall accept any allocation amount designated by the
Borrower and the Administrative Lender that is equal to or less than
its proposed portion of the Available Commitment increase; and
SECTION 5. Amendment to Section 2.18(h). Subsection 2.18(h) of the Credit
Agreement is amended in its entirety as follows:
(h) Each of the proposed increases shall be in an aggregate minimum
amount of $10,000,000 and $5,000,000 multiples thereof; and
SECTION 6. Amendment to Section 8.01(a)(i). The last sentence of
subsection 8.01(a)(i) of the Credit Agreement is amended in its entirety as
follows:
(a)(i) Notwithstanding anything in this Agreement to the contrary, the
second time that ABRY makes any capital contribution or Cure Sub Debt loan
to cure any Event of Default as a result of a violation of this Section
8.01(a) as permitted above or 8.01 (b) as permitted therein, any such
capital contribution or Cure Sub Debt loan shall be applied in accordance
with the terms of Section 2.05(b) hereof, but shall permanently reduce the
outstanding Obligations by a reduction in the Available Commitment in
accordance with the terms of Section 2.11(c)(i) hereof; and
SECTION 7. Amendment to Section 8.01(b)(i). The last sentence of
subsection 8.01(b(i)
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of the Credit Agreement is amended in its entirety as follows:
Notwithstanding anything in this Agreement to the contrary, the second time
that ABRY makes any capital contribution or Cure Sub Debt loan to cure any
Event of Default as a result of a violation of this Section 8.01(b) as
permitted above or Section 8.01(a) as permitted therein, any such capital
contribution or Cure Sub Debt loan shall be applied in accordance with the
terms of Section 2.05(b) hereof, but shall permanently reduce the
outstanding Obligations by a reduction in the Available Commitment in
accordance with the terms of Section 2.11(c)(ii) hereof; and
SECTION 8. Amendment to Section 11.01. The first sentence of 11.01 of the
Credit Agreement is amended by adding the following proviso at the end of the
sentence : and "provided further, however, that no amendment, waiver, or consent
shall (and the result of action or failure to take action shall not) unless in
writing and signed by a Supermajority Lenders and Administrative Lender, change
the definition of "Supermajority Lenders" or Section 8.02(c)."
SECTION 9. Conditions Precedent. This First Amendment shall not be
effective until all proceedings of the Borrower taken in connection with this
First Amendment and the transactions contemplated hereby shall be satisfactory
in form and substance to the Administrative Lender and Lenders, and the
Administrative Lender and Lenders shall have each received such other documents,
instruments, and certificates, in form and substance satisfactory to the
Administrative Lender, as the Administrative Lender shall deem necessary or
appropriate in connection with this First Amendment and the transactions
contemplated hereby.
SECTION 10. Representations and Warranties. The Borrower represents and
warrants to the Lenders and the Administrative Lender that (a) this First
Amendment constitutes its legal, valid, and binding obligations, enforceable in
accordance with the terms hereof (subject as to enforcement of remedies to any
applicable bankruptcy, reorganization, moratorium, or other laws or principles
of equity affecting the enforcement of creditors' rights generally), (b) there
exists no Event of Default or Default under the Credit Agreement both before and
after giving effect to this First Amendment, (c) its representations and
warranties set forth in the Credit Agreement and other Loan Papers are true and
correct on the date hereof both before and after giving effect to this First
Amendment, (d) it has complied with all agreements and conditions to be complied
with by it under the Credit Agreement and the other Loan Papers by the date
hereof, (e) the Credit Agreement, as amended hereby, and the other Loan Papers
remain in full force and effect, and (f) no notice to, or consent of, any Person
is required under the terms of any agreement of the Borrower in connection with
the execution of this First Amendment.
SECTION 11. Further Assurances. The Borrower shall execute and deliver
such further agreements, documents, instruments, and certificates in form and
substance satisfactory to the Administrative Lender, as the Administrative
Lender or any Lender may deem necessary or appropriate in connection with this
First Amendment.
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SECTION 12. Counterparts. This First Amendment and the other Loan Papers
may be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought.
SECTION 13. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
SECTION 14. GOVERNING LAW. (a) THIS AGREEMENT AND ALL LOAN PAPERS SHALL
BE DEEMED CONTRACTS MADE UNDER THE LAWS OF TEXAS AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF TEXAS, EXCEPT TO THE
EXTENT (A) FEDERAL LAWS GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION OF ALL OR ANY PART OF THIS AGREEMENT AND ALL LOAN PAPERS OR (B)
STATE LAW GOVERNS UCC COLLATERAL INTERESTS FOR PROPERTIES OF THE BORROWER AND
THE SUBSIDIARIES OUTSIDE THE STATE OF TEXAS. WITHOUT EXCLUDING ANY OTHER
JURISDICTION, THE BORROWER AND EACH SUBSIDIARY AGREES THAT THE COURTS OF TEXAS
WILL HAVE JURISDICTION OVER PROCEEDINGS IN CONNECTION HEREWITH.
(b) THE BORROWER AND EACH SUBSIDIARY HEREBY WAIVES PERSONAL SERVICE OF ANY
LEGAL PROCESS UPON IT. IN ADDITION, THE BORROWER AND EACH SUBSIDIARY AGREES
THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY REGISTERED MAIL (RETURN RECEIPT
REQUESTED) DIRECTED TO THE BORROWER AT ITS ADDRESS DESIGNATED FOR NOTICE UNDER
THIS AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON RECEIPT
BY THE BORROWER. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE LENDER OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
SECTION 15. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
THE BORROWER, EACH SUBSIDIARY AND EACH LENDER HEREBY WAIVES ANY RIGHT THAT IT
MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT,
EQUITY, OR OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER
LOAN PAPERS, OR ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
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THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, this First Amendment to Third Amended and Restated
Credit Agreement is executed as of the date first set forth above.
THE BORROWER: PINNACLE TOWERS INC.
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By:
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Its:
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ADMINISTRATIVE LENDER: NATIONSBANK,N.A.,as Administrative Lender
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By:
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Its:
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SYNDICATION AGENT: XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Syndication Agent
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By:
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Its:
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LENDERS: NATIONSBANK, N.A., individually as a Lender
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By: Xxxxxxx X. Xxxx
Its: Vice President
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XXXXXXX XXXXX CREDIT PARTNERS L.P.
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By:
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Its:
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BANKBOSTON, N.A.
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By:
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Its:
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SOCIETE GENERALE, NEW YORK BRANCH
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By:
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Its:
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BANK OF AMERICA
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By:
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Its:
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KEY CORPORATE CAPITAL INC.
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By:
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Its:
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UNION BANK OF CALIFORNIA, N.A.
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By:
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Its:
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