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Exhibit 10.10
SECOND AMENDMENT
TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT AGREEMENT is
dated as of December 6, 1999 (this "Second Amendment"), and entered into among
PINNACLE TOWERS INC., a Delaware corporation (the "Borrower"), the Lenders
signatory hereto, BANK OF AMERICA, N.A., a national banking association,
individually and as Administrative Agent (in such latter capacity, the
"Administrative Agent").
WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent, and Lenders entered
into a Fifth Amended and Restated Credit Agreement, dated as of September 17,
1999, as amended by that certain First Amendment to Fifth Amended and Restated
Credit Agreement, dated as of October 29, 1999 (as amended and as further
amended, restated, or otherwise modified from time to time, the "Credit
Agreement"). Unless specifically defined or redefined below, capitalized terms
used herein shall have the meanings ascribed thereto in the Credit Agreement;
WHEREAS, the Lenders, the Borrower, and the Administrative 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, and the Administrative Agent agree as follows:
SECTION 1. Amendment to Second Paragraph of the BACKGROUND Section. The
second full paragraph of the BACKGROUND section of the Credit Agreement on page
1 of the Credit Agreement shall be deleted in its entirety and the following
paragraph substituted in its stead:
WHEREAS, Borrower and Administrative Agent have agreed to
restructure, extend, renew, refinance, and restate such indebtedness
under the Original Credit Agreement as set forth herein to provide for
three separate facilities 1) a seven year reducing revolver facility in
the initial amount of $235,000,000 (with (i) a subfacility provided by
Bank of America Canada to a Canadian subsidiary of the Borrower in a
maximum amount not to exceed $16,464,800 Canadian Dollars, such amount
approximately equal to $11,000,000 on the closing date and (ii) a
swingline subfacility in the maximum amount of $5,000,000 provided by
Bank of America, N.A.), (such reducing revolver facility has an
uncommitted increase option which could increase the reducing revolver
facility to $435,000,000), 2) a seven year delayed draw acquisition
term loan in the amount of $125,000,000, and 3) an eight year term loan
in the amount of $110,000,000 (which must be fully drawn on the date of
closing), and to make certain other agreed to changes to the existing
credit facility among the parties thereto. Of the proceeds of the
facility referenced in 1) above, $219,957,000
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be applied on the date hereof to refinance indebtedness under the
Original Credit Agreement Term Loan A (as defined in the Original
Credit Agreement) and such portions of Revolver A and Revolver B (as
each is defined in the Original Credit Agreement) that constitute
Acquisition Debt (as defined below).
SECTION 2. Amendment to Article I Definitions.
(a) The definition of "Advances" in Article I of the Credit Agreement
shall be deleted in its entirety and the following definition of "Advances"
shall be substituted in its stead:
"Advance" means an advance made by a Lender to the Borrower
pursuant to Section 2.01 hereof which may be a Revolver Advance, a Term
Loan A Advance or a Term Loan B Advance (and may either be Base Advance
or a LIBOR Advance), and which such Advance may also be a Refinancing
Advance or a Swingline Advance.
(b) The definition of "Commitment" in Article I of the Credit Agreement
shall be deleted in its entirety and the following definition of "Commitment"
shall be substituted in its stead:
"Commitment" means $235,000,000 (as such amount has been or
may be increased prior to June 30, 2001 in accordance with the terms of
Section 2.18 hereof) minus the sum of (a) the undrawn face amount of
all Letters of Credit, plus (b) the sum of all reimbursement
obligations under Article III hereof, plus (c) the Canada Indebtedness
Amount, plus (d) all outstanding Swingline Advances, in each case as
such Commitment may be further reduced from time to time, or
terminated, pursuant to Sections 2.06, 2.11 or 9.02 hereof.
(c) The definition of "Note" in Article I of the Credit Agreement shall
be deleted in its entirety and the following definition of "Note" shall be
substituted in its stead:
"Note" means each Note of the Borrower evidencing Advances
hereunder, substantially in the forms of Exhibits X-0, X-0, X-0 and A-4
hereto, together with any extension, renewal or amendment thereof, or
substitution therefor.
(d) The definitions of "Swingline Advance", "Swingline Bank",
"Swingline Commitment", "Swingline Facility", "Swingline Loan", "Swingline Note"
and "Swingline Rate" shall be added to Article I in alphabetical order and shall
read in their entirety as follows:
"Swingline Advance" means an Advance made pursuant to Section
2.01(a)(ii) hereof.
"Swingline Bank" means Bank of America, N.A. and any
Administrative Agent successor thereto appointed in accordance with
Section 10.06 hereof.
"Swingline Commitment" means the lesser of (a) $5,000,000 and
(b) the remainder of the Commitment minus the sum of all outstanding
Revolver Advances.
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"Swingline Facility" means that certain swingline facility
available to the Borrower in accordance with the terms of Section
2.01(a)(ii) hereof.
"Swingline Loan" means the loans made under the Swingline
Facility from time to time.
"Swingline Note" means the Swingline Note of the Borrower
payable to the order of the Swingline Bank, evidencing Swingline
Advances hereunder, substantially in the form of Exhibit A-4 hereto,
together with any extension, renewal or amendment thereof or
substitution therefor.
"Swingline Rate" means an interest rate per annum equal to the
Base Rate minus .50%, provided that the Swingline Rate shall never be
less than zero.
SECTION 3. Amendment of Section 2.01(a). Section 2.01(a) of the Credit
Agreement shall be deleted in its entirety and the following Section 2.01(a)
shall be substituted in its stead:
(a) The Revolver Loan.
(i) Revolver Advances. Each Lender severally agrees, on the
terms and subject to the conditions hereinafter set forth, to make
Advances to the Borrower on a Business Day during the period from the
Closing Date to the First Maturity Date, in an aggregate principal
amount not to exceed at any time outstanding such Lender's Revolver
Specified Percentage of the Commitment. Subject to the terms and
conditions of this Agreement, the Borrower may borrow, repay and
reborrow the Revolver Advances; provided, however, that at no time
shall the sum of all outstanding Revolver Advances exceed the
Commitment.
(ii) Swingline Advances. The Borrower may request the
Swingline Bank to make, and the Swingline Bank shall make, on the terms
and conditions hereinafter set forth, Advances to the Borrower from
time to time on any Business Day during the period from the Closing
Date to the First Maturity Date in an aggregate principal amount not to
exceed at any time the Swingline Commitment. Each Swingline Advance
shall be in an amount not less than $50,000 and shall bear interest at
the Swingline Rate. Within the limits of the Swingline Facility and
subject to the terms hereof, Swingline Advances may be repaid and then
reborrowed; provided, that each Swingline Advance must be repaid (which
such repayment, subject to the terms of this Agreement, may be made
with the proceeds of Revolver Advances) no later than 30 calendar days
after the date such Swingline Advance was made.
SECTION 4. Amendment of Section 2.02. Section 2.02 of the Credit
Agreement shall be deleted in its entirety and the following Section 2.02 shall
be substituted in its stead:
2.02. Making Advances.
(a) Each Borrowing of Advances shall be made upon the written
notice of the Borrower, received by Administrative Agent not later than
(i) 10:00 a.m. three
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Business Days prior to the date of the proposed Borrowing, in the case
of LIBOR Advances and (ii) 10:00 a.m. on the date of such Borrowing, in
the case of Base Advances. Each such notice of a Borrowing (a
"Borrowing Notice") shall be by telecopy or telephone, promptly
confirmed by letter, in substantially the form of Exhibit D hereto
specifying therein:
(i) the date of such proposed Borrowing, which shall
be a Business Day;
(ii) the Type of Advances of which the Borrowing is
to be comprised, and whether such Borrowing is a Revolver
Advance, a Swingline Advance, a Term Loan A Advance or a Term
Loan B Advance (provided that, other than with respect to the
Term Loan A Initial Advance and the Term Loan B Initial
Advance, all such borrowings under the Term Loan A and the
Term Loan B shall be Refinancing Advances);
(iii) the amount of such proposed Borrowing which,
(A) in the case of Advances under the Revolver Loan, shall not
exceed the unused portion of the Commitment, in the case of
Advances under the Swingline Loan, shall not exceed the unused
portion of the Swingline Commitment, in the case of the Term
Loan A Initial Advance, shall not exceed the Term Loan A
amount of $125,000,000, and in the case of the Term Loan B
Initial Advance, shall not exceed the Term Loan B amount of
$110,000,000, (B) shall, in the case of a Borrowing of Base
Advances other than Swingline Advances, be in an amount of not
less than $500,000 or an integral multiple of $50,000 in
excess thereof (or any lesser amount if such amount is the
remaining undrawn portion under the Commitment) and (C) shall,
in the case of a Borrowing of LIBOR Advances, be in an amount
of not less than $5,000,000 or an integral multiple of
$100,000 in excess thereof; and
(iv) if the Borrowing is to be comprised of LIBOR
Advances, the duration of the initial Interest Period
applicable to such Advances.
If the Borrowing Notice fails to specify the duration of the
initial Interest Period for any Borrowing comprised of LIBOR Advances,
such Interest Period shall be three months. Administrative Agent shall
promptly notify Lenders of each such notice except any notice with
respect to a Swingline Advance. Each Lender shall, before 1:00 p.m. on
the date of each Advance hereunder (other than a Refinancing Advance or
Swingline Advance), make available to Administrative Agent, at its
office at Bank of America Plaza, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000,
such Lender's Applicable Specified Percentage of the aggregate Advances
to be made on that day in immediately available funds.
(b) Unless any applicable condition specified in Article IV
has not been satisfied, Administrative Agent will make the funds
promptly available to the Borrower (other than with respect to a
Refinancing Advance or a Swingline Advance)
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by wiring such amounts pursuant to any wiring instructions specified by
the Borrower to the Administrative Agent in writing.
(c) After giving effect to any Borrowing, (i) there shall not
be more than ten different Interest Periods in effect, (ii) the
aggregate principal amount of outstanding Revolver Advances shall not
exceed the Commitment, and (iii) the aggregate principal amount of
outstanding Swingline Advances shall not exceed the Swingline
Commitment.
(d) No Interest Period applicable to any Revolver Advance and
Term Loan A Advance shall extend beyond the First Maturity Date, and no
Interest Period applicable to any Term Loan B Advance shall extend
beyond the Final Maturity Date.
(e) Unless a Lender shall have notified Administrative Agent
prior to the date of any Advance that it will not make available its
Applicable Specified Percentage of any such Advance (that is not a
Refinancing Advance or a Swingline Advance), the Administrative Agent
may assume that such Lender has made the appropriate amount available
in accordance with Section 2.02(a) hereof, and Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent any Lender shall not have
made such amount available to Administrative Agent, such Lender and the
Borrower severally agree to repay to Administrative Agent immediately
on demand such corresponding amount together with interest thereon,
from the date such amount is made available to the Borrower until the
date such amount is repaid to Administrative Agent, at (i) in the case
of the Borrower, the Base Rate, and (ii) in the case of such Lender,
the Federal Funds Rate.
(f) The failure by any Lender to make available its Applicable
Specified Percentage of any Advance hereunder shall not relieve any
other Lender of its obligation, if any, to make available its
Applicable Specified Percentage of any Advance. In no event, however,
shall any Lender be responsible for the failure of any other Lender to
make available any portion of any Advance.
(g) The Borrower shall indemnify each Lender against any
Consequential Loss incurred by each Lender as a result of (i) any
failure to fulfill, on or before the date specified for the Advance,
the conditions to the Advance set forth herein or (ii) the Borrower's
requesting that an Advance not be made on the date specified in the
Borrowing Notice.
(h) In the case of Swingline Advances, the Borrower shall give
the Swingline Bank and the Administrative Agent irrevocable telephonic
notice in accordance with Section 2.02(a) hereof on the date of any
proposed Swingline Advance (provided, however, (i) the Borrower shall
deliver written notice at least once a week confirming the telephonic
notices given by the Borrower with respect to Swingline Advances during
the immediately preceding week and (ii) that the Borrower's failure to
confirm any telephonic notice in writing shall not invalidate any
notice so given) of its intention to borrow or reborrow a Swingline
Advance. Such
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notice of borrowing shall specify (i) the requested funding date, which
shall be a Business Day and (ii) the amount of the proposed Swingline
Advance. The Swingline Bank shall, not later than 2:00 p.m., Dallas,
Texas time, on the date of any Swingline Advance, deliver to the
Administrative Agent at its address set forth herein, the amount of
such Swingline Advance in immediately available funds in accordance
with the Administrative Agent's instructions. Prior to 2:30 p.m.,
Dallas, Texas time, on the date of any Swingline Advance, the
Administrative Agent shall, subject to the conditions set forth in
Article IV hereof, disburse the amount made available to the
Administrative Agent by the Swingline Bank by (i) transferring such
amounts by wire transfer pursuant to the Borrower's instruction or (ii)
in the absence of such instructions, crediting such amounts to the
account of the Borrower maintained with the Administrative Agent.
Forthwith upon demand by the Swingline Bank at any time, including, but
without limitation (A) after the occurrence of a Default or Event of
Default, (B) after the occurrence of a Material Adverse Change, (C)
after the date that is 30 days after the date any Swingline Advance is
made and (D) in any event upon the making of the direction specified by
Section 9.02 hereof to authorize the Administrative Agent to declare
the Obligations due and payable pursuant to the provisions of Section
9.02 hereof, each Lender, notwithstanding (i) the failure of the
Borrower at such time to satisfy each condition specified in Article IV
hereof or (ii) any reduction in the Commitment, shall make by 12:00
noon (Dallas, Texas time) on the first Business Day following receipt
by such Lender of notice from the Swingline Bank, a Revolver Advance
which is a Base Advance in an amount equal to the product of (i) the
Revolver Specified Percentage of such Lender times (ii) the aggregate
outstanding principal amount of the Swingline Advances (a "Mandatory
Borrowing"). The proceeds of such Revolver Advances shall be applied by
the Administrative Agent to repay the outstanding Swingline Advances.
Each Lender hereby irrevocably agrees to make a Revolver Advance
pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified in
writing by the Swingline Bank notwithstanding (i) that the amount of
the Mandatory Borrowing may not comply with any minimum amount for
Borrowings otherwise required hereunder, (ii) whether any conditions
specified in Article IV hereof are then satisfied, (iii) whether a
Default or an Event of Default then exists, (iv) the date of such
Mandatory Borrowing and (v) the aggregate amount of the Commitment at
such time.
If any Mandatory Borrowing cannot for any reason be made on the
date otherwise required above (including, without limitation, as a
result of the commencement of a proceeding under the Bankruptcy Code
with respect to the Borrower), each Lender hereby agrees that it shall
forthwith purchase (as of the date on which the Mandatory Borrowing
would otherwise have occurred, but adjusted for any payments received
from the Borrower on or after such date and prior to such purchase)
from the Swingline Bank such participations in the outstanding
Swingline Advances as shall be necessary to cause the Lenders to share
in such Swingline Advances ratably based upon their Revolver Specified
Percentages of the Commitment (determined before giving effect to any
termination of the Commitment); provided that (i) all interest payable
on the Swingline Advance shall be for the account
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of the Swingline Bank until the date as of which the respective
participation is required to be purchased and, to the extent
attributable to the purchased participation, shall be payable to the
participating Lender from and after such date and (ii) at the time any
purchase of participations pursuant to this sentence is actually made,
the purchasing Lender shall be required to pay the Swingline Bank
interest on the principal amount of the participation purchased for
each day from and including the day upon which the Mandatory Borrowing
would otherwise have occurred to but excluding the date of payment for
such participation, at the overnight Federal Funds Rate for the first
five days and at the rate otherwise applicable to Revolver Advances
hereunder for each day thereafter.
SECTION 5. Addition of Section 2.03(a)(iv). A new Section 2.03(a)(iv)
shall be added to the end of Section 2.03(a) of the Credit Agreement to read in
its entirety as follows:
(iv) The Swingline Advances made by the Swingline Bank shall
be evidenced by a Swingline Note in the amount of $5,000,000 (as the
same may be modified pursuant to Section 11.04 hereof) in the form of
Exhibit A-4 hereto.
SECTION 6. Amendment of Section 2.04. Section 2.04 of the Credit
Agreement shall be deleted in its entirety and the following Section 2.04 shall
be substituted in its stead:
2.04. Optional Prepayments.
(a) The Borrower may, upon at least two Business Days prior
written notice to Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, prepay the outstanding
principal amount of any Advances in whole or in part, together with
accrued interest to the date of such prepayment on the principal amount
prepaid without premium or penalty other than any Consequential Loss;
provided, however, that in the case of a prepayment of a Base Advance,
the notice of prepayment may be given by telephone by 10:00 a.m. on the
date of prepayment. Each partial prepayment shall, in the case of Base
Advances, be in an aggregate principal amount of not less than $500,000
or a larger integral multiple of $50,000 in excess thereof (or, with
respect to a Swingline Advance, in the full amount of such Swingline
Advance) and, in the case of LIBOR Advances, be in an aggregate
principal amount of not less than $5,000,000 or a larger integral
multiple of $100,000 in excess thereof. If any notice of prepayment is
given, the principal amount stated therein, together with accrued
interest on the amount prepaid and the amount, if any, due under
Section 2.12 and Section 2.14 hereof, shall be due and payable on the
date specified in such notice unless the Borrower revokes its notice,
provided that, if the Borrower revokes its notice of prepayment prior
to such date specified, the Borrower shall reimburse the Administrative
Agent for the account of all Lenders for all Consequential Losses
suffered by each Lender as a result of the Borrower's failure to
prepay. A certificate of each Lender claiming compensation under this
Section 2.04(a), setting forth in reasonable detail the calculation of
the additional amount or amounts to be paid to it hereunder shall be
presumptive evidence of the validity of such claim.
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(b) No prepayments of Revolver Advances made solely pursuant
to this Section 2.04 shall cause the Commitment to be reduced.
Prepayments of Term Loan A Advances and Term Loan B Advances may not be
reborrowed. All prepayments made hereunder shall be allocated in
accordance with the terms and conditions of Section 2.13(f) hereof. All
prepayments made pursuant to this Section 2.04 (other than to the
Swingline Loan) shall be first applied to Base Advances then to LIBOR
Advances.
SECTION 7. Amendment of Section 2.05(e). Section 2.05(e) of the Credit
Agreement shall be deleted in its entirety and the following Section 2.05(e)
shall be substituted in its stead:
(e) Mandatory Prepayments, Generally. Unless otherwise
directed by the Borrower, any prepayments made pursuant to this Section
2.05 (other than prepayments applied to Swingline Advances) shall be
first applied to Base Advances and then to LIBOR Advances, without
premium or penalty, except the Borrower must pay together with any such
prepayments, any Consequential Losses. Application of all payments and
prepayments shall be applied in accordance with the terms of Section
2.13(f) hereof.
SECTION 8. Amendment of Section 2.06(e). Section 2.06(e) of the Credit
Agreement shall be deleted in its entirety and the following Section 2.06(e)
shall be substituted in its stead:
(e) Repayments, Generally. Any repayments made pursuant to
this Section 2.06 (other than repayments applied to Swingline Advances)
shall be first applied to Base Advances and then to LIBOR Advances in
the order of maturity, without premium or penalty, except the Borrower
must pay together with any such prepayments, any Consequential Losses.
All repayments shall be allocated among the Loans in accordance with
the terms of Section 2.13(f) hereof.
SECTION 9. Amendment of Section 2.07. Section 2.07 of the Credit
Agreement shall be deleted in its entirety and the following Section 2.07 shall
be substituted in its stead:
2.07. Interest. Subject to Section 2.08 and Section 11.08
hereof, the Borrower shall pay interest on the unpaid principal amount
of each Advance from the date of such Advance until such principal
shall be paid in full, at the following rates per annum, in each case
as selected by the Borrower in accordance with the terms of Section
2.02 hereof, and provided that Swingline Advances shall always bear
interest at the Swingline Rate:
(a) Base Advances. Base Advances shall bear interest
at a rate per annum equal to the Base Rate as in effect from
time to time. If the amount of interest payable in respect of
any interest computation period is reduced to the Highest
Lawful Rate and the amount of interest payable in respect of
any subsequent interest computation period would be less than
Maximum Amount, then the amount of interest payable in respect
of such subsequent
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interest computation period shall be automatically increased
to the Maximum Amount; provided that at no time shall the
aggregate amount by which interest paid has been increased
pursuant to this sentence exceed the aggregate amount by which
interest has been reduced pursuant to this sentence.
(b) LIBOR Advances. LIBOR Advances shall bear
interest at the rate per annum equal to the LIBOR Rate
applicable to such Advance.
(c) Payment Dates. Accrued and unpaid interest on
Base Advances shall be paid quarterly in arrears on each
Quarterly Date and on the First Maturity Date with respect to
Advances under the Revolver Loan and the Term Loan A and the
Final Maturity Date with respect to Advances made under the
Term Loan B. Accrued and unpaid interest in respect of each
LIBOR Advance shall be paid on the last day of the appropriate
Interest Period and on the date of any prepayment or repayment
of such Advance; provided, however, that if any Interest
Period for a LIBOR Advance exceeds three months, interest
shall also be paid on the date which falls three months after
the beginning of such Interest Period.
(d) Swingline Advances. Swingline Advances shall bear
interest at a rate per annum equal to the Swingline Rate as in
effect from time to time. If the amount of interest payable in
respect of any interest computation period is reduced to the
Highest Lawful Rate and the amount of interest payable in
respect of any subsequent interest computation period would be
less than Maximum Amount, then the amount of interest payable
in respect of such subsequent interest computation period
shall be automatically increased to the Maximum Amount;
provided that at no time shall the aggregate amount by which
interest paid has been increased pursuant to this sentence
exceed the aggregate amount by which interest has been reduced
pursuant to this sentence. The Borrower shall pay interest on
the outstanding principal amount of such Swingline Advance,
from the date such Swingline Advance is made until it is due
(whether at maturity, by reason of acceleration or otherwise)
and repaid, at an interest rate per annum equal to the
Swingline Rate. Accrued and unpaid interest on Swingline
Advances shall be paid quarterly in arrears on each Quarterly
Date, on any rollover or extinguishment of any Swingline
Advance and on the First Maturity Date.
SECTION 10. Amendment of Section 2.09(a)(i). Section 2.09(a)(i) of the
Credit Agreement shall be deleted in its entirety and the following Section
2.09(a)(i) shall be substituted in its stead:
(i) elect to convert, on any Business Day, all
or any portion of outstanding Base Advances, except Base
Advances that are Swingline Advances (in an aggregate amount
not less than $500,000 or an integral multiple of $50,000 in
excess thereof) into LIBOR Advances; or
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SECTION 11. Amendment of Section 2.13(f) and Addition of Section
2.13(g). Section 2.13(f) of the Credit Agreement shall be deleted in its
entirety and the following Section 2.13(f) shall be substituted in its stead,
and a new Section 2.13(g) shall be added to the end of Section 2.13 of the
Credit Agreement as set forth below:
(f) Notwithstanding anything to the contrary herein or in any
Loan Paper, to the extent the Borrower makes any voluntary prepayment,
or voluntary reduction of the Commitment under Sections 2.04 or 2.11
hereof, or any mandatory prepayment, or mandatory reduction of the
Commitment under Sections 2.05 and 2.11 hereof, then such reduction of
the Commitment or such prepayment shall be applied as follows:
(i) so long as there exists no Default or Event of
Default, all voluntary Commitment reductions and all voluntary
repayments and prepayments shall be applied as directed by the
Borrower, and in the absence of direction by the Borrower,
shall be deemed to prepay and reduce, respectively (1) the
Commitment and the Swingline Loan and the Revolver Loan, until
the Commitment has been reduced to zero and the outstandings
under the Swingline Loan have been repaid in full and the
outstandings under the Revolver Loan have been repaid in full
(the Swingline Advances to be repaid in full prior to any
repayment of the Revolver Advances), then (2) the Term Loan A
and the Term Loan B, pro rata, until all outstanding Term Loan
A Advances and Term Loan B Advances have been repaid in full
and (3) to all remaining outstanding and unpaid Obligations;
provided that, so long as there exists no Default or Event of
Default, each Lender having a Term Loan B Specified Percentage
in excess of zero may elect to decline all voluntary
prepayments made or allocated to Term Loan B in accordance
with the terms of this Agreement, in which case such declined
prepayments shall be allocated to the Revolver Loan and the
Term Loan A pro rata;
(ii) so long as there exists no Default or Event of
Default, all mandatory Commitment reductions and all mandatory
repayments and prepayments shall be applied first to repay any
Swingline Advances and then pro rata among the Revolver Loan,
the Term Loan A and the Term Loan B, and then to all remaining
outstanding Obligations; provided that, so long as there
exists no Default or Event of Default, each Lender having a
Term Loan B Specified Percentage in excess of zero may elect
to decline all mandatory prepayments made or allocated to Term
Loan B in accordance with the terms of this Agreement, in
which case such declined prepayments shall be allocated to the
Revolver Loan and the Term Loan A pro rata;
(iii) if there exists a Default or Event of Default,
all mandatory and voluntary Commitment reductions and
mandatory and voluntary repayments and prepayments shall be
applied first to any outstanding Swingline Advances and then
pro rata among the Revolver Loan, the Term Loan A and the Term
Loan B, and then to all remaining outstanding Obligations; and
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(iv) all Term Loan A and Term Loan B repayments and
prepayments shall be applied to installments due thereunder in
the inverse order of maturity, and all repayments and
prepayments, and reductions to the Commitment shall not affect
the mandatory commitment reduction schedule set forth in
Section 2.11(b) hereof.
(g) At all times prior to the Lenders making a Revolver
Advance pursuant to Section 2.02(h) hereof, the Administrative Agent
shall distribute all payments in respect of the Swingline Advances to
the Swingline Bank. At such time, if any, that the Lenders make a
Revolver Advance pursuant to Section 2.02(h) hereof, the Administrative
Agent shall distribute all payments in respect of the Swingline
Advances to the Lenders in accordance with the respective Revolver
Specified Percentages.
SECTION 12. Amendment of Section 2.15. Section 2.15 of the Credit
Agreement shall be deleted in its entirety and the following Section 2.15 shall
be substituted in its stead:
2.15. Use of Proceeds. The proceeds of all Revolver Advances
and Swingline Advances borrowed hereunder shall be solely used in
connection with the acquisition of assets in accordance with the terms
of Section 1008(v) of the Indenture, such that all Revolver Advances
and Swingline Advances constitute in each case, Acquisition Debt
or"Purchase Money Secured Debt" (as defined in the Indenture) in
accordance with the terms of the Indenture, the other Parent Senior
Notes Documentation and permitted fully secured indebtedness under all
Second Parent Issuance Documentation. The proceeds of the initial Term
Loan B Advance and all Term Loan A Advances shall be available (and the
Borrower shall use such proceeds) solely (i) with respect to the
initial Term Loan B Advance and any Term Loan A Advance made on the
Closing Date only, to refinance existing indebtedness of the Borrower,
(ii) for Permitted Acquisitions, (iii) for Capital Expenditures
permitted under the terms of this Agreement, (iv) for working capital
and (v) for other lawful corporate purposes. Notwithstanding the
preceding sentences of this Section 2.15, any Revolver Advance that
constitutes a Qualified Facility Revolver Advance shall be available
(and the Borrower shall use such proceeds) solely (i) for Permitted
Acquisitions, (ii) for Capital Expenditures permitted under the terms
of this Agreement, (iii) for working capital and (iv) for other lawful
corporate purposes.
SECTION 13. Amendment of Section 3.01. Section 3.01 of the Credit
Agreement shall be deleted in its entirety and the following Section 3.01 shall
be substituted in its stead:
3.01. Issuance of Letters of Credit. Letters of Credit issued
under the Original Credit Agreement and described on Schedule 3.01
hereto shall be deemed, for the purposes of this Agreement, to be
issued hereunder, and each such Letter of Credit shall be treated
accordingly. The Borrower shall give the Administrative Agent not less
than five Business Days prior written notice of a request for the
issuance of a Letter of Credit, and the Administrative Agent shall
promptly notify each Lender of
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such request. Upon receipt of the Borrower's properly completed and
duly executed Applications, and subject to the terms of such
Applications and to the terms of this Agreement ( this Agreement
governing all conflicting provisions), the Administrative Agent agrees
to issue Letters of Credit on behalf of the Borrower in an aggregate
face amount not in excess of the Letter of Credit Commitment, each
denominated in Dollars and each for sight drawings only. No Letter of
Credit shall have a maturity extending beyond the earliest of (i) the
fifth Business Day prior to the First Maturity Date, or (ii) one year
from the date of its issuance, or (iii) such earlier date as may be
required to enable the Borrower to satisfy its repayment obligations
under Section 2.06 hereof (including, without limitation, such
repayment obligations resulting from a decrease in the Commitment
required by Section 2.11 hereof). Subject to such maturity limitations
and so long as no Default or Event of Default has occurred and is
continuing or would result from the renewal of a Letter of Credit, the
Letters of Credit may be renewed by the Administrative Agent in its
discretion. The Lenders shall participate ratably in all rights and
obligations of the Administrative Agent under the Letters of Credit and
in any unreimbursed draws under any Letter of Credit in their Revolver
Specified Percentages. The amount of the Letters of Credit issued and
outstanding and the unpaid reimbursement obligations of the Borrower
for such Letters of Credit shall reduce the amount of Commitment
available, so that at no time shall the sum of (i) all outstanding
Revolver Advances in the aggregate, plus (ii) all outstanding Swingline
Advances in the aggregate, plus (iii) the aggregate face amount of all
outstanding Letters of Credit, plus (iv) (without duplication) all
outstanding reimbursement obligations related to Letters of Credit,
exceed $235,000,000 (as such amount has been or may be increased by
Section 2.18 hereof, and as may be reduced by Section 2.11 hereof), and
at no time shall the sum of all Revolver Advances made by any Lender
(except the Canada Lender), plus any such Lender's ratable share of
amounts available to be drawn under the Letters of Credit and the
unpaid reimbursement obligations of the Borrower in respect of such
Letters of Credit exceed such Lender's Revolver Specified Percentage of
the Commitment, provided that, with respect to the Canada Lender, at no
time shall the sum of all Revolver Advances made by the Canada Lender
plus its ratable share of amounts available to be drawn under the
Letters of Credit and the unpaid reimbursement obligations of the
Borrower in respect of such Letters of Credit exceed an amount equal to
the difference between its Revolver Specified Percentage of the
Commitment, minus the Canada Indebtedness Amount.
SECTION 14. Amendment of Section 4.02(f) and Section 4.02(g). Section
4.02(f) and Section 4.02(g) of the Credit Agreement shall be deleted in their
entirety and the following Section 4.02(f) and 4.02(g) shall be substituted in
their stead:
(f) In the case of any Advance under the Revolver Loan, the
aggregate outstanding Revolver Advances, after giving effect to any
such proposed Revolver Advance, shall not exceed the Commitment, and in
the case of any Advance under the Swingline Loan, the aggregate
outstanding Swingline Advances, after giving effect to any such
proposed Swingline Advance, shall not exceed the Swingline Commitment;
and
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13
(g) In the case of each and every Advance under the Loan, the
Borrower, by making its borrowing request hereunder, or requesting the
issuance of any Letter of Credit, will provide a certificate to the
Administrative Agent containing (i) a representation and warranty to
the Administrative Agent and each Lender that the proceeds of such
Advance shall be used in accordance with the terms of Section 2.15
hereof, and (ii) a representation and calculation that with respect to
each Revolver Advance that is not a Qualified Facility Revolver Advance
and each Swingline Advance, such Advance will constitute Acquisition
Debt in accordance with the terms of the Indenture and that such
acquisition is a nonleveraging event, in accordance with the terms of
the Indenture, the Parent Senior Notes Documentation (with supporting
calculations in reasonable detail acceptable to the Administrative
Agent with respect thereto).
SECTION 15. Amendment of Section 10.03. Section 10.03 of the Credit
Agreement shall be deleted in its entirety and the following Section 10.03 shall
be substituted in its stead:
10.03. Bank of America, N.A. and Affiliates. With respect to
its portion of the Commitment, its Advances, the Canada Indebtedness,
the Swingline Loan and any Loan Papers, Bank of America, N.A. has the
same Rights under this Agreement as any other Lender and may exercise
the same as though it were not Administrative Agent. Bank of America,
N.A. and its Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, and generally engage in any kind of
business with, any Obligor, any Affiliate thereof, and any Person who
may do business therewith, all as if Bank of America, N.A. were not
Administrative Agent and without any duty to account therefor to any
Lender.
SECTION 16. Amendment of Section 10.06. Section 10.06 of the Credit
Agreement shall be deleted in its entirety and the following Section 10.06 shall
be substituted in its stead:
10.06. Successor Administrative Agent. Administrative Agent
may resign at any time by giving written notice thereof to Lenders and
the Borrower, and may be removed at any time with or without cause by
the action of all Lenders (other than Administrative Agent, if it is a
Lender). If the Administrative Agent also then serves in the capacity
of the Swingline Bank or the Letter of Credit issuing bank, such
resignation or removal shall constitute resignation or removal of the
Swingline Bank and the Administrative Agent in its capacity as Letter
of Credit issuing bank and the successor Administrative Agent shall
serve in the capacity of the Swingline Bank and the Letter of Credit
issuing bank. Upon any such resignation, Majority Lenders shall have
the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed and shall have
accepted such appointment within thirty days after the retiring
Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank
organized under the Laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least
$50,000,000. Upon the acceptance
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of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the Rights and duties
of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under the
Loan Papers, provided that if the retiring or removed Administrative
Agent is unable to appoint a successor Administrative Agent,
Administrative Agent shall, after the expiration of a sixty day period
from the date of notice, be relieved of all obligations as
Administrative Agent hereunder. Notwithstanding any Administrative
Agent's resignation or removal hereunder, the provisions of this
Article shall continue to inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under
this Agreement.
SECTION 17. Addition of Last Sentence to Section 11.01. A new last
sentence shall be added to the end of Section 11.01 of the Credit Agreement as
follows:
No amendment, waiver, or consent shall affect the Rights or duties of
Swingline Bank or the Administrative Agent in its capacity as issuer of
any Letter of Credit under any Loan Papers, unless it is in writing and
signed by the Swingline Bank or the Administrative Agent in addition to
the requisite number of Lenders.
SECTION 18. Amendment of Section 11.05. Section 11.05 of the Credit
Agreement shall be deleted in its entirety and the following Section 11.05 shall
be substituted in its stead:
11.05. Sharing of Payments. If, after and during the
continuance of any Event of Default, any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any
Right of set-off, or otherwise) on account of its Advances in excess of
its pro rata share of payments made by the Borrower in accordance with
such Lender's Total Specified Percentage (except payments to the
Swingline Bank made to repay Swingline Advances), such Lender shall
forthwith purchase participations in Advances made by the other Lenders
as shall be necessary to share the excess payment pro rata in
accordance with each Lender's Total Specified Percentage with each of
them; provided, however, that if any of such excess payment is
thereafter recovered from the purchasing Lender, its purchase from each
Lender shall be rescinded and each Lender shall repay the purchase
price to the extent of such recovery together with a pro rata share of
any interest or other amount paid or payable by the purchasing Lender
in respect of the total amount so recovered. The Borrower agrees that
any Lender so purchasing a participation from another Lender pursuant
to this Section 11.05 may, to the fullest extent permitted by Law,
exercise all its Rights of payment (including the Right of set-off)
with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 19. Addition of Exhibit A-4. Exhibit A-4 attached to this
Second Amendment shall be added to the Credit Agreement and attached as Exhibit
A-4 to the Credit Agreement.
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15
SECTION 20. Conditions Precedent. This Second Amendment shall not be
effective until all proceedings of the Borrower taken in connection with this
Second Amendment and the transactions contemplated hereby shall be satisfactory
in form and substance to the Administrative Agent and Lenders, and the
Administrative Agent and Lenders shall have each received:
(a) copies of resolutions authorizing the execution, delivery
and performance of this Second Amendment by the Borrower, the Parent,
and their Subsidiaries and legal opinions by counsel in form and
substance satisfactory to the Administrative Agent regarding the due
execution, delivery and performance of this Second Amendment and the
legality, validity and the enforceability thereof;
(b) the Borrower shall have delivered to the Administrative
Agent a fully executed and completed Swingline Note; and
(c) such other documents, instruments, and certificates, in
form and substance satisfactory to the Administrative Agent, as the
Administrative Agent shall deem necessary or appropriate in connection
with this Second Amendment and the transactions contemplated hereby.
SECTION 21. Representations and Warranties. The Borrower represents and
warrants to the Lenders and the Administrative Agent that (a) this Second
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 Second 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 Second
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 Second Amendment.
SECTION 22. Further Assurances. The Borrower shall execute and deliver
such further agreements, documents, instruments, and certificates in form and
substance satisfactory to the Administrative Agent, as the Administrative Agent
or any Lender may deem necessary or appropriate in connection with this Second
Amendment.
SECTION 23. Counterparts. This Second 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 24. 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
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SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
SECTION 25. 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 AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
SECTION 26. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY
LAW, EACH PARTY HERETO, 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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IN WITNESS WHEREOF, this Second Amendment to Fifth Amended and Restated
Credit Agreement is executed as of the date set forth above.
THE BORROWER: PINNACLE TOWERS INC.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.,
as Administrative Agent
-----------------------------------------------
By: Xxxxxxx X. Xxxxx
Its: Vice President
LENDERS:
BANK OF AMERICA, N.A., individually as a Lender
-----------------------------------------------
By: Xxxxxxx X. Xxxxx
Its: Vice President
BANKBOSTON, N.A.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
-17-
18
BANKERS TRUST COMPANY
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
SOCIETE GENERALE
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
UNION BANK OF CALIFORNIA, N.A.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
KEY CORPORATE CAPITAL INC.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
COBANK, ACB
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
-18-
19
CREDIT LYONNAIS NEW YORK BRANCH
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
THE BANK OF NOVA SCOTIA
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
DRESDNER BANK AG NEW YORK & GRAND CAYMAN
BRANCHES
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
MERCANTILE BANK NATIONAL ASSOCIATION
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
U.S. BANK NATIONAL ASSOCIATION
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
-19-
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CREDIT LOCAL DE FRANCE - NEW YORK AGENCY
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
IBM CREDIT CORPORATION
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
THE CIT GROUP/EQUIPMENT FINANCING, INC.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
ALLFIRST BANK
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
CITY NATIONAL BANK
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
-20-
21
XXXXXXX XXXXX BANK, FSB
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
XXXXXX FINANCIAL, INC.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
PILGRIM PRIME RATE TRUST
By: Pilgrim Investment, Inc.,
as its investment manager
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
PPM SPYGLASS FUNDING TRUST
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME TRUST
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
-21-
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KZH ING-1 LLC
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
KZH ING-2 LLC
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
SEQUILS-ING I (HBDGM), LTD.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
TORONTO DOMINION (NEW YORK), INC.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
SEQUILS PILGRIM I, LTD.
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
-22-
23
XXXXXXX BANK
-----------------------------------------------
By:
-----------------------------------------
Its:
-----------------------------------------
Accepted and Agreed as
of October ___, 1999:
PINNACLE HOLDINGS, INC.
By:
-------------------------------------------
Its:
-------------------------------------------
COVERAGE PLUS ANTENNA SYSTEMS, INC.
By:
-------------------------------------------
Its:
-------------------------------------------
TOWER SYSTEMS, INC.
By:
-------------------------------------------
Its:
-------------------------------------------
RADIO STATION WGLD, INC.
By:
-------------------------------------------
Its:
-------------------------------------------
WEO TOWER INC.
-23-
24
By:
-------------------------------------------
Its:
-------------------------------------------
ICB TOWERS, LLC
By:
-------------------------------------------
Its:
-------------------------------------------
AIRCOMM OF AVON, LLC
By:
-------------------------------------------
Its:
-------------------------------------------
HIGH POINT MANAGEMENT CO., INC.
By:
-------------------------------------------
Its:
-------------------------------------------
TOWER TECHNOLOGY CORPORATION OF JACKSONVILLE
By:
-------------------------------------------
Its:
-------------------------------------------
-24-
00
XXXXXXXXX XXXXXXXXXXX XX XXXXX
By:
-------------------------------------------
Its:
-------------------------------------------
COASTAL ANTENNA'S INC.
By:
-------------------------------------------
Its:
-------------------------------------------
MARMAC INDUSTRIES INCORPORATED
By:
-------------------------------------------
Its:
-------------------------------------------
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