Exhibit 10.4
SECOND AMENDMENT TO LOAN AGREEMENT
This SECOND AMENDMENT TO LOAN AGREEMENT is made and entered into as of
January 17, 1997, by and among CASTLE TOWER CORPORATION, a Delaware corporation
("CTC-Del"), CASTLE TOWER CORPORATION (PR), a Puerto Rico corporation ("CTC-PR"
and, together with CTC-Del, collectively, the "Borrowers" and individually, a
"Borrower"), the FINANCIAL INSTITUTIONS listed on the signature pages hereof,
and KEYBANK NATIONAL ASSOCIATION (formerly known as "Society National Bank"), as
agent (the "Agent").
RECITALS
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A. CTC-Del, CTC-PR, the Agent and the Banks entered into a Loan
Agreement dated as of April 26, 1995 (as amended by the First Amendment to Loan
Agreement dated as of June 26, 1996, the "Original Agreement"), pursuant to
which the Banks agreed to make available to the Borrowers loans of up to
$25,000,000. The Original Agreement, as amended hereby, may be referred to
hereinafter as the "Loan Agreement." Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to them in the Loan
Agreement.
B. The Borrowers desire to increase the amount of the Reducing
Commitment to $49,000,000, to revise the amortization schedules, to revise
certain of the financial covenants and to make certain other changes in the
Original Agreement. Subject to the terms and conditions of this Amendment, the
Agent and the Banks have agreed to such requests.
AGREEMENTS
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In consideration of the foregoing Recitals and of the covenants and
representations contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Borrowers, the
Agent and the Banks agree as follows:
1. Amendments. Subject to the satisfaction of the conditions set
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forth in Section 3 of this Amendment, the Original Agreement shall be amended as
follows:
(a) Section 1.1 shall be amended by adding thereto the following
new definitions in the proper alphabetical order:
"Adjusted Leverage Ratio" means, as of any date of determination,
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the ratio of Adjusted Total Debt as of
such date to Operating Cash Flow for the four quarter period then
ended or most recently ended.
"Adjusted Total Debt" means, as of any date, Total Debt
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outstanding as of such date minus an amount equal to 80% of the sum,
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as of such date, of all cash, currency and credit balances of the
Borrowers and their Subsidiaries in any demand, time, savings,
passbook or like account with a bank, savings and loan association,
credit union or like organization, other than an account evidenced by
a negotiable certificate of deposit; provided that accounts evidenced
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by negotiable certificates of deposit issued by any Bank shall be
included in such sum.
"Interest Expense" means, for any period, the gross interest
----------------
expense accrued by the Borrowers and their Subsidiaries in respect of
their Indebtedness for such period, determined on a consolidated
basis, all fees payable under Section 2.6 or the Fee Letter referred
to in the Second Amendment and any other fees, charges, commissions
and discounts in respect of Indebtedness, including fees payable in
connection with the Letters of Credit. For purposes of the foregoing,
gross interest expense shall be determined after giving effect to any
net payments made or received by the Borrowers with respect to Rate
Hedging Obligations.
"Second Amendment" means the Second Amendment to Loan Agreement
----------------
dated as of January 17, 1997, among the Borrowers, the Agent and the
Banks.
(b) The definition of the term "Applicable Margin" in Section 1.1
shall be amended in its entirety to read as follows:
"Applicable Margin" means, as of any date of determination, the
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percentage determined from the following table based upon the Adjusted
Leverage Ratio:
Adjusted Applicable Applicable
Leverage Margin for Margin for
Ratio: Base Rate Loans: LIBOR Loans:
----- --------------- -----------
Greater than 1.50% 3.00%
5.00:1.0 but less
than or equal to
5.50:1.0
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Greater than 1.25% 2.75%
4.50:1.0 but less
than or equal to
5:00:1.0
Greater than 1.00% 2.50%
4.00:1.0 but less
than or equal to
4.50:1.0
Greater than .75% 2.25%
3.50:1.0 but less
than or equal to
4:00:1.0
Greater than .50% 2.00%
3.00:1.0 but less
than or equal to
3.50:1.0
Less than or equal .25% 1.75%
to 3.0:1.0
(c) The definition of the term "Debt Service" in Section 1.1
shall be amended by deleting the word "Borrower" on the sixth line thereof and
in its place inserting the words "Borrowers and their Subsidiaries."
(d) The definition of the term "Default Interest Rate" in Section
1.1 shall be amended in its entirety to read as follows:
"Default Interest Rate" means, as of any date, a rate of interest
---------------------
equal to the Base Rate plus 5.5% per annum.
(e) The definition of the term "Excess Cash Flow" in Section 1.1
shall be amended by deleting clause (e) thereof and in its place inserting the
following clause:
(e) the excess, if any, in Working Capital of the Borrowers and
their Subsidiaries as of the end of such fiscal year over the Working
Capital of the Borrowers and their Subsidiaries as of the end of the
prior fiscal year.
(f) The definition of the term "Historical Fixed Charges" in
Section 1.1 shall be amended by deleting the word "Borrower" in each place it
appears therein and in its place inserting the words "Borrowers or their
Subsidiaries".
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(g) The definition of "Material Adverse Effect" in Section 1.1
shall be amended by deleting the word "Borrower" in each place it appears
therein, and in its place inserting the words "Borrowers or any of their
Subsidiaries."
(h) The definition of "Net Earnings" in Section 1.1 shall be
amended by deleting the word Borrower in the second line thereof and in its
place inserting the words "Borrowers and their Subsidiaries".
(i) The definition of the term "Operating Cash Flow" in Section
1.1 shall be amended in its entirety to read as follows:
"Operating Cash Flow" means, during any period, Net Earnings for
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such period (excluding, to the extent included in Net Earnings, any
Extraordinary Items and the effect of any exchange of space on a Tower
for non-cash consideration, such as merchandise or services), minus
-----
the sum of any interest and other investment income during such
period, plus the sum of, without duplication, (a) depreciation on or
----
obsolescence of fixed or capital assets and amortization of
intangibles and leasehold improvements for such period, plus (b) any
----
amounts paid by the Borrowers in such period in respect of Rate
Hedging Obligations to the extent such amounts were deducted in
calculating Net Earnings, plus (c) cash interest accrued and paid
----
during such period, plus (d) federal and state income taxes accrued
----
and paid during such period (exclusive of any such taxes resulting
from any Extraordinary Items), plus (e) non-recurring costs paid in
----
such period in connection with the Purchase Agreement or Qualified
Acquisitions and approved by the Agent, to the extent that such costs
were paid from equity contributions or the proceeds of any Loan. The
calculation of Operating Cash Flow shall be subject to the following
adjustments:
(i) For purposes of calculating Operating Cash Flow for any
quarter ending on or prior to December 31, 1998, an amount equal to
Corporate Development Expense actually accrued and paid during such
quarter shall be added back to Net Earnings (to the extent deducted in
calculating Net Earnings); provided, however, that (A) no more than an
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amount equal to $750,000 of Corporate Development Expense may be added
back to Net Earnings in any quarter; (B) no amount of Corporate
Development Expense shall be added back to Net Earnings for any
quarter ending after December 31, 1998; and (C) in no event shall more
than an aggregate amount of $1,500,000
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of Corporate Development Expense be added back to Net Earnings for
either of the four quarter periods ending December 31, 1997, or
December 31, 1998, or more than an aggregate amount of $3,000,000 of
Corporate Development Expense be added back to Net Earnings for the
eight quarter period ending December 31, 1998, except, in either such
case, to the extent Holdco shall have made a cash capital contribution
to CTC-Del after the date of the Second Amendment in the amount of
such excess and expressly designated for the payment of Corporate
Development Expense; and
(ii) For purposes of calculating Operating Cash Flow for any
period, the acquisition pursuant to the Purchase Agreement, each other
Qualified Acquisition and each sale or other disposition by the
Borrowers of any Towers and related assets, whether by sale of stock
or assets, which occurs during such period, shall be deemed to have
occurred on the first day of such period; accordingly, the operating
cash flow received by the seller of the Towers and related assets, or
of a management agreement in respect thereof, acquired pursuant to the
Purchase Agreement and each Qualified Acquisition shall be included
for the entire period and the Operating Cash Flow relating to any
Towers and related assets, or of a management agreement in respect
thereof, sold or otherwise disposed of during such period shall be
excluded from the calculation of Operating Cash Flow for the entire
period.
(j) The definition of the term "Pledge Agreements" in Section 1.1
shall be amended in its entirety to read as follows:
"Pledge Agreements" means the Holdco Pledge Agreement, the
-----------------
Stockholder Pledge Agreement, the Pledge Agreement dated June 26, 1996
between Holdco and KeyBank National Association, as agent, and the
Pledge Agreement dated June 26, 1996 between CTC-Del and KeyBank
National Association, as agent as each such Agreement may be amended.
(k) The definition of "Projected Debt Service" in Section 1.1
shall be amended by deleting the word "Borrower" in the eighth and twelfth lines
thereof and in its place inserting the words "Borrowers or their Subsidiaries."
(l) The definition of the term "Ratable Share" in Section 1.1
shall be amended in its entirety to read as follows:
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"Ratable Share" means, with respect to any Bank, its pro rata
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share of the Commitments, the Letters of Credit or the Loans. The
Ratable Shares of the Banks as of the effective date of the Second
Amendment shall be as listed on Schedule 1 to the Second Amendment.
(m) The definition of "Rate Hedging Obligations" in Section 1.1
shall be amended by deleting the word "Borrower" in the second and sixth lines
thereof and in its place inserting the words "Borrowers or their Subsidiaries".
(n) The definition of the term "Termination Date" in Section 1.1
shall be amended in its entirety to read as follows:
"Termination Date" means December 31, 2003.
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(o) The definition of "Total Debt" in Section 1.1 shall be
amended by deleting the word "Borrower" in each place it appears therein and in
its place inserting the words "Borrowers or their Subsidiaries".
(p) Section 1.3 shall be amended by adding at the end thereof the
following sentence:
"All financial or accounting calculations or determinations required
pursuant to this Agreement unless otherwise expressly provided shall
be made on a consolidated basis for the Borrowers and their
Subsidiaries."
(q) Sections 2.1(a) and (b) shall be amended in their entirety to
read as follows:
(a) Subject to the terms and conditions hereof, during the
period up to but not including the Termination Date, the Banks shall
make loans to the Borrowers in such amounts as the Borrowers may from
time to time request (the "Reducing Loans") but not exceeding in
aggregate principal amount at any one time outstanding $49,000,000 (as
such amount may be reduced from time to time, the "Reducing
Commitment"). Each Reducing Loan requested by the Borrowers shall be
funded by the Banks in accordance with their Ratable Shares of the
requested Reducing Loan. A Bank shall not be obligated hereunder to
make any additional Reducing Loan if immediately after making such
Loan, the aggregate principal balance of all Reducing Loans made by
such Bank would exceed such Bank's Ratable Share of the Reducing
Commitment. The Reducing Loans
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may be comprised of Base Rate Loans or LIBOR Loans, as provided in
Section 2.4 hereof.
(b) On December 31, 1998, the Reducing Commitment shall
automatically reduce to the then outstanding amount of the Reducing
Loans, and, on each date set forth in the table below, the Reducing
Commitment shall automatically further reduce by an amount equal to
that percentage set forth in such table for such date of the Reducing
Commitment in effect on January 1, 1999:
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Calendar March 31 June 30 September 30 December 31
Year
1999 3.50% 4.00% 4.00% 4.00%
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2000 4.00% 4.00% 4.00% 4.00%
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2001 4.00% 4.50% 4.50% 4.50%
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2002 4.50% 5.00% 5.00% 5.00%
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2003 5.00% 5.00% 5.00% 16.5%
================================================================
(r) The fifth sentence of Section 2.1(d)(i) shall be amended to
read in its entirety as follows:
No Letter of Credit shall be issued after December 31, 1998 (except
for any renewals thereof), or expire later than March 31, 2003, and no
Letter of Credit shall have a term exceeding 364 days.
(s) Section 2.4(d)(iii) shall be amended by deleting the date
"June 30, 1997" from the last sentence thereof and in its place inserting the
date "December 31, 1998".
(t) Section 2.7(b)(ii) shall be amended by deleting the date
"December 31, 1996" from the first sentence thereof and in its place inserting
the date "December 31, 1998".
(u) Section 2.7(b) shall be amended by adding clauses (v) and
(vi) at the end thereof which shall read in their entirety as follows:
(v) Net Equity Proceeds. If any Borrower issues or sells any
-------------------
shares of its capital stock or other equity interests or securities
convertible into or exercisable for any shares of its capital stock or
other equity interests, it shall, within five days of
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such sale or issuance, make a mandatory prepayment of the Loans in an
amount (not to exceed 100% of the net cash proceeds of such issuance
or sale) equal to that amount which, had it been paid on the last day
of the most recently ended quarter, would have caused the Leverage
Ratio to equal 4.5 to 1.0; provided, however, that if, as of the date
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of such equity issuance, such Borrower is a party to a legally binding
acquisition agreement for a Qualified Acquisition permitted pursuant
to Section 8.10(b), such Borrower may use the proceeds of such
issuance or sale to pay the purchase price of such Qualified
Acquisition;
(vi) Required Divestitures. On or before June 30, 1997, the
---------------------
Borrowers shall make a mandatory prepayment of the Loans in an amount
equal to $1,075,000, the proceeds for which shall be derived from
either (A) the sale of the SMR Business and the SMR Assets, as such
terms are defined in the Motorola Purchase Agreement, by CTR-PR or (B)
the capital contribution received by CTC-Del in July of 1996. Together
with such prepayment, the Borrowers shall deliver to the Agent written
notice specifying the source of funds for such prepayment.
(v) Section 2.7(c)(ii) shall be amended by deleting the phrase
"Section 2.7(b)(ii), (iii) or (iv)" in the first sentence thereof and in its
place inserting the phrase "Section 2.7(b)(ii), (iii), (iv), (v) or (vi)".
(w) Section 3.1(b) shall be amended in its entirety to read as
follows:
(b) The Applicable Margin shall be determined by the Agent
quarterly, and upon the making of each Loan and the issuance of each
Letter of Credit, based on the financial statements and the Compliance
Certificate delivered to the Banks pursuant to Sections 7.5(b) and (d)
(in the case of a quarterly determination) and the compliance
certificate delivered pursuant to Section 6.12(b) (in the case of the
determination of the Applicable Margin upon the making of a Loan or
the issuance of a Letter of Credit). Any change in the interest rate
on the Loans due to a change in the Applicable Margin shall be
effective on the fifth Banking Day after delivery of such financial
statements; provided, however, that if any such financial statements
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or compliance certificate indicate an increase in the Applicable
Margin and such financial statements or compliance certificate are not
provided within the time period required in Section 7.5(a) or
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(b), as the case may be, the increase in the interest rate due to such
increase in the Applicable Margin shall be effective retroactively as
of the fifth Banking Day after the date on which such financial
statements were due. The Borrowers shall deliver to the Banks with
each set of annual or quarterly financial statements which indicate a
change in the Applicable Margin a notice with respect to such change.
(x) Section 6.12 shall be amended to read in its entirety as
follows:
6.12 Financial Information.
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(a) On the Closing Date, the Borrower shall have delivered to
the Agent a pro forma balance sheet and income statement as of the
Closing Date giving effect to the closing under the Purchase
Agreement.
(b) The Borrowers shall have delivered to the Agent a pro forma
compliance certificate in form and substance satisfactory to the Agent
showing the Adjusted Leverage Ratio as the date of each borrowing or
issuance of a Letter of Credit and the Borrowers' compliance with the
financial covenants set forth in Section 8.
(y) Section 7.1 shall be amended to read in its entirety as
follows:
7.1 Use of Proceeds.
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(a) The Borrowers shall use the proceeds of the Reducing Loans
only as follows: (i) to voluntarily prepay the Term Loan, subject to
payment of the applicable Term Loan Prepayment Premium and other
senior indebtedness in an amount not to exceed $18,000,000; (ii) for
Qualified Acquisitions on or prior to December 31, 1998; (iii) for
Capital Expenditures made pursuant to the last sentence of Section
8.7; (iv) for fees and transaction costs associated with the Closing;
and (v) for corporate purposes approved by the Majority Banks.
(b) The Borrowers shall use the proceeds of the Working Capital
Loan only for working capital purposes.
(z) Section 7.3 shall be amended by adding at the end of the
third sentence thereof, the following sentence:
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The Borrowers shall maintain business interruption insurance in form
and amount satisfactory to the Agent.
(aa Section 7.5 shall be amended in its entirety to read as
follows:
7.5 Financial Statements and Reports. The Borrowers shall maintain
--------------------------------
true and complete books and records of account in accordance with
GAAP. The Borrowers shall furnish to the Agent, for delivery to the
Banks, the following financial statements, projections and notices at
the following times:
(a) As soon as available, but in no event later than ninety days
after the end of each fiscal year of the Borrowers, the Borrowers
shall furnish (i) audited consolidated financial statements, including
balance sheets and income and expense statements of the Borrowers and
their Subsidiaries, showing the financial condition of the Borrowers
and their Subsidiaries as of the close of such fiscal year and the
results of their operations during such fiscal year, together with a
statement of cash flows of the Borrowers and their Subsidiaries and
additional statements, schedules and footnotes as are customary in a
complete accountant's report; such financial statements shall set
forth, in comparative form, corresponding figures for the prior year
and shall be certified by nationally recognized independent certified
public accountants selected by the Borrowers and acceptable to the
Agent and accompanied by the management letter of such accountants to
the Borrowers, and the opinion of such accountants shall be
unqualified and in a form reasonably satisfactory to the Agent; and
(ii) 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 condition which constitutes an Event of Default or
Possible Default or, if they have such knowledge, specifying the
nature and period of existence thereof; provided, however, that in
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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;
(b) As soon as available, but in no event later than forty-five
days after the end of each quarter of the Borrowers, the Borrowers
shall furnish (i) unaudited consolidated financial statements,
including consolidated balance sheets and income statements of
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the Borrowers and their Subsidiaries, showing the financial condition
of the Borrowers and their Subsidiaries as of the end of such period
and the results of their operations during such period and for the
then elapsed portion of the fiscal year, which shall be accompanied by
a statement of cash flows of the Borrowers and their Subsidiaries for
such periods, (ii) an unaudited statement of income and expense for
each Tower for such quarter and the then elapsed portion of the fiscal
year as the Agent may reasonably request, (iii) a statement showing
Capital Expenditures (including a comparison to Capital Expenditures
budgeted for such period) and income taxes paid, each for such period,
and (iv) for periods ending prior to December 31, 1998, separate
income statements for such period for all Division A Acquisitions and
Division B Acquisitions; all such financial statements shall set
forth, in comparative form, corresponding figures for the equivalent
period of the prior year and a comparison to budget for the relevant
period, shall be in form and detail satisfactory to the Agent, and
shall be certified as to accuracy and completeness by the chief
financial officer of each Borrower;
(c) As soon as available, but in no event later than thirty days
after the end of each month, the Borrowers shall furnish an unaudited
statement of income and expense for each Borrower for such month and
for the then elapsed portion of the fiscal year, containing
comparisons with the budget for such period and with the prior year;
each such statement shall be in form and detail satisfactory to the
Agent and shall be certified as to accuracy and completeness by the
chief financial officer of each Borrower;
(d) The financial statements required under (a) and (b) above,
shall be accompanied by a compliance certificate in the form attached
hereto as Exhibit L executed by the chief financial officer of each
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Borrower setting forth the computations showing compliance with the
financial covenants set forth in Section 8, and certifying that no
Possible Default or Event of Default has occurred, or if any Event of
Default or Possible Default has occurred, stating the nature thereof
and the actions the Borrowers intend to take in connection therewith;
(e) The Borrowers shall deliver (i) within forty-five days after
the end of each fiscal year, an annual operating budget for the
Borrowers for the next succeeding fiscal year, (ii) promptly upon
preparation
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thereof, any material revisions of such annual budget and (iii) after
each monthly period in which there is a material adverse deviation
from budget a certificate of the chief financial officer of each
Borrower explaining the deviation and the action, if any, the
Borrowers have taken or propose to take with respect thereto;
(f) The Borrowers shall furnish (i) upon request, promptly after
the filing thereof with the Internal Revenue Service, copies of each
annual report with respect to each Plan established or maintained by
any Borrower or any member of the Controlled Group for each plan year,
including (A) where required by law, a statement of assets and
liabilities of such Plan as of the end of such plan year and
statements of changes in fund balance and in financial position, or a
statement of changes in net assets available for plan benefits, for
such plan year, certified by an independent public accountant
satisfactory to the Agent, and (B) if prepared by or available to the
Borrowers, an actuarial statement of such Plan applicable to such plan
year, certified by an enrolled actuary of recognized standing
acceptable to the Agent; and (ii) promptly after receipt thereof, a
copy of any notice any Borrower or a member of the Controlled Group
may receive from the Department of Labor or the Internal Revenue
Service with respect to any Plan (other than notices of general
application) which could result in a material liability to any
Borrower; the Borrowers will promptly notify the Agent of any material
taxes assessed, proposed to be assessed or which the Borrowers have
reason to believe may be assessed against any Borrower or any member
of the Controlled Group by the Internal Revenue Service with respect
to any Plan or Benefit Arrangement; and
(g) Upon the Agent's written request, such other information
about the financial condition, properties and operations of either
Borrower as any Bank may from time to time reasonably request.
(bb) Section 7.13 shall be amended by deleting the date "July 1,
2001" in the third line thereof, and in its place inserting the words "the
Termination Date".
(cc) Section 7.16 shall be added, to read in its entirety as
follows:
7.16 Borrowers' Subsidiaries. So long as this Agreement remains
-----------------------
in effect or any of the Obligations remain unpaid or to be performed,
or any Letter of Credit remains outstanding, the Borrowers shall cause
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each of their Subsidiaries to perform and comply with the affirmative
covenants contained in Section 7 hereof (except for Section 7.13) and
shall cause each of their Subsidiaries not, directly or indirectly, to
take any of the actions set forth in Section 8 hereof nor permit any
of the conditions set forth in Section 8 hereof to occur.
(dd) Section 8.4 shall be amended by (i) deleting the word
"Borrower" in the eighth line thereof and in its place inserting the words
"Borrowers and their Subsidiaries" and (ii) deleting the figure "$50,000" in the
last line thereof, and in its place inserting the words "$150,000 in the
aggregate."
(ee) Section 8.5 shall be amended by (i) deleting the word
"Borrower" from the sixth line thereof and in its place inserting the words
"Borrowers and their Subsidiaries" and (ii) inserting after the figure "$50,000"
in the eighth line thereof, the words "in the aggregate".
(ff) Section 8.6 shall be amended by (i) adding the words "by
the Borrowers and their Subsidiaries" after the word "payable" in the fourth
line thereof and (ii) deleting the figure "$50,000" in the sixth line thereof,
and in its place inserting the words "$150,000 in the aggregate."
(gg) Section 8.7 shall be amended in its entirety to read as
follows:
8.7 Capital Expenditures. Except for Qualified Acquisitions
--------------------
permitted pursuant to Section 8.10(b), the Borrowers and their
Subsidiaries shall not make Capital Expenditures (not including (x)
any payments in respect of Capitalized Lease Obligations or (y)
expenditures of proceeds of casualty insurance policies reasonably and
promptly applied to replace insured assets) which exceed the sum of
(a) (i) $250,000 in the aggregate per year in each of fiscal years
1996 and 1997, and (ii) $75,000 in the aggregate in any fiscal year
thereafter, plus (b) an amount equal to 10% of operating cash flow,
for the twelve month period most recently ended prior to such
acquisition, of Towers acquired in each Qualified Acquisition. In
addition to the Capital Expenditures permitted pursuant to the
foregoing sentence, the Borrowers may make Capital Expenditures
through the Termination Date in an amount not to exceed $5,000,000 in
the aggregate for the purpose of constructing new Towers.
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(hh) Section 8.10(a) shall be amended by adding, after the words
"Section 8.10(b)" on the second line thereof, the phrase "or (c)".
(ii) Section 8.10(b)(vii)(C) shall be amended in its entirety to
read as follows:
(C) the term of such note shall not extend beyond March 31, 2003;
(jj) Section 8.10(b)(xiii) shall be amended in its entirety to
read as follows:
(xiii) the closing of such acquisition shall occur no later than
December 31, 1998.
(kk) Section 8.10 shall be amended by adding a new Section (c)
at the end thereof which shall read in its entirety as follows:
(c) Notwithstanding the provisions of Section 8.10(a), the
Borrowers may take the actions described in Section 8.10(a)(iv) or (v)
with the advance written approval of the Agent, which approval shall
be in the sole discretion of the Agent.
(ll) Section 8.13(a) shall be amended to read in its entirety as
follows:
(a) Leverage Ratio. The Borrower shall not permit the
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Leverage Ratio as of any date in any period listed in Column A below
to be greater than the ratio set forth in Column B below opposite such
period:
Column A Column B
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Period: Permitted Ratio:
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Closing to December 30, 1998: 5.50:1.0
December 31, 1998, to 5.25:1.0
March 30, 1999:
March 31, 1999, to 4.50:1.0
September 29, 1999:
September 30, 1999, to 4.25:1.0
March 30, 2000:
March 31, 2000, to March 30, 3.50:1.0
2001:
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March 31, 2001, and 3.00:1.0.
thereafter:
(mm) Section 8.13(e) shall be amended to read in its entirety as
follows:
(e) Minimum Cash Reserve. The Borrowers and their Subsidiaries
--------------------
shall not permit the sum of the aggregate amount of their cash and
cash equivalents permitted pursuant to Section 8.11 plus the undrawn
amount of the Working Capital Commitment to be less than or equal to,
at any time $300,000.
(nn) Section 8.13 shall be amended by adding a new Section (f)
at the end thereof which shall read in its entirety as follows:
(f) The Borrowers shall not permit the ratio of (i) Operating Cash
Flow for any four quarter period to (ii) Interest Expense for such
four quarter period to be less than 2.00:1.00.
(oo) Section 9.4 shall be amended by (i) deleting the words "the
Borrower" in the first and fourth lines thereof and in their place inserting the
words "Any Borrower or any of their Subsidiaries" and (ii) inserting after the
figure "$50,000" in the second line thereof the words "in the aggregate."
(pp) Section 9.5 shall be amended by deleting the words "The
Borrower" in the first line thereof and in their place inserting the words "Any
Borrower or any of their Subsidiaries."
(qq) Section 9.6 shall be amended by deleting the words "the
Borrower" in the third and fourth lines thereof and in their place inserting the
words "any Borrower or any of their Subsidiaries."
(rr) Section 9.7 shall be amended by deleting the words "the
Borrower" in each place it appears therein and in their place inserting the
words "any Borrower or any of their Subsidiaries."
(ss) Section 9.8 shall be amended by (i) deleting the words "the
Borrower" in the first and third line thereof and in their place inserting the
words "any Borrower or any of their Subsidiaries" and (ii) inserting after the
figure "$50,000" in the fourth line thereof the words "in the aggregate."
(tt) Section 9.9 shall be amended by (i) deleting the words "the
Borrower" from the first line thereof and inserting in their place the words
"any Borrower or any of their
-15-
Subsidiaries" and (ii) deleting the words "the Borrower" from the eighth line
thereof and inserting in their place the words "each Borrower and each of their
Subsidiaries."
(uu) Section 9.10 shall be amended by deleting the words "the
Borrower" in each place it appears and inserting in their place the words "any
Borrower or any of their Subsidiaries."
(vv) Section 12.4 shall be amended by deleting the address of
the Agent and in its place inserting the following address:
TO THE AGENT:
KeyBank National Association
000 Xxxxxx Xxxxxx
X/X XX-00-000-0000
Xxxxxxxxx, Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Media and Telecommunications Finance
Division
Telecopy: 000-000-0000
Copy to:
Xxxxxxx X. Xxxxxx, Esq.
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxx., X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Telecopy: 202-776-2222
(ww) The text of Exhibits X, X, X, X, X, X, X, X and L to the
Original Agreement shall be deleted and replaced with the text of Xxxxxxxx X, X,
X, X, X, X, X, X and L attached to this Amendment.
2. Consent. Notwithstanding any limitation on prepayment of the Term
-------
Loan set forth in Section 2.7(a)(ii) of the Original Agreement, but subject to
the payment of the applicable Term Loan Prepayment Premium, the Banks hereby
consent to the prepayment of the Term Loan in full on the effective date of this
Amendment with the proceeds of a Reducing Loan, and, upon such prepayment, the
Term Loan shall be deemed paid in full and shall not be deemed outstanding for
any purposes of the Loan Agreement.
3. Conditions to Effectiveness. The amendments set forth in Section
---------------------------
1 and the consent set forth in Section 2 shall
-16-
be effective upon satisfaction of all of the following conditions:
(a) Each Borrower shall have delivered to the Agent a certified
copy of resolutions of its Board of Directors evidencing approval of the
execution, delivery and performance of this Amendment, the Amended Notes, and
the other agreements, documents and instruments required pursuant hereto.
(b) The Borrowers shall have executed and delivered to the Banks
Amended and Restated Revolving Credit Notes in the form attached hereto as
Exhibit A (the "Amended Reducing Notes"), and Amended and Restated Working
---------
Capital Notes in the form attached hereto as Exhibit B (the "Amended Working
---------
Capital Notes" and, together with the Amended Reducing Notes, collectively, the
"Amended Notes" and individually, an "Amended Note").
(c) Holdco shall have executed and delivered to the Agent the
Acknowledgment and Agreement set forth in Annex 1 attached hereto.
(d) Spectrum Site Management Corporation shall have executed and
delivered to the Agent the Acknowledgment and Agreement set forth in Annex 2
attached hereto.
(e) Centennial Fund IV, L.P. shall have executed and delivered to
the Agent the Acknowledgment and Agreement set forth in Annex 3 attached hereto.
(f) The Borrowers, Holdco, Spectrum Site Management Corporation
and Centennial Fund IV, L.P. shall have executed and delivered such amendments
to the Pledge Agreements, Security Agreements, Mortgages, Guaranty, and other
Collateral Documents to which they are respectively parties, as the Agent and
its counsel may request, in form and substance satisfactory to the Agent.
(g) The Borrowers shall have delivered to the Agent the following:
(i) certificates of good standing for CTC-Del from the
Secretary of State of each of the States of Delaware and Texas, and a
certificate of good standing for CTC-PR from the Secretary of the Commonwealth
of Puerto Rico, in each case dated as of a date as near to the effective date as
practicable;
(ii) a certificate signed by the Secretary or Assistant
Secretary of each Borrower certifying that attached thereto are true and
complete copies of the Certificate of Incorporation and By-Laws of each
Borrower;
-17-
(iii) an incumbency certificate for each Borrower; and
(iv) such other documents as any Bank may reasonably request
in connection with the proceedings taken by either Borrower or Holdco
authorizing this Amendment, the Amended Notes or the other Collateral Documents
and the transactions contemplated hereby, to the extent it is a party thereto.
(h) The Borrowers shall have paid to the Agent and the Banks all
commitment fees accrued under the Original Agreement and the fees required
pursuant to Section 4.
(i) There shall have been no changes in the business, properties,
operations, prospects or condition, financial or otherwise, of either Borrower
since December 31, 1995, which are individually or in the aggregate materially
adverse.
(j) The Borrowers shall have delivered to the Agent opinions in
form and substance satisfactory to the Agent from the general counsel, Texas and
Puerto Rico counsel of the Borrowers.
(k) The Borrowers shall have delivered to the Agent the
certificate referred to in Section 7.15 of the Loan Agreement calculating the
amount of Stockholder Debt that must be secured in order for each Borrower not
to be deemed to be a "United States Real Property Holding Corporation" for
purposes of Section 897 of the Code.
(l) The Borrowers shall have paid to each Bank such Bank's Ratable
Share of the applicable Term Loan Prepayment Premium and all accrued and unpaid
interest on the Term Loan or agreed to make such payments at such later date as
may be designated by such Bank.
(m) Spectrum Site Management Corporation shall have become a
direct wholly-owned subsidiary of CTC-Del.
4. Fees. The Borrowers shall pay to the Agent the fees provided in
----
the separate letter agreement between the Borrowers and the Agent of even date
herewith.
5. Representations, Warranties and Events of Default.
-------------------------------------------------
(a) Except as amended hereby, the terms, provisions, conditions
and agreements of the Original Agreement are hereby ratified and confirmed and
shall remain in full force and effect. Each and every representation and
warranty of the Borrowers set forth in the Original Agreement, as amended
hereby,
-18-
other than those which by their terms are limited to a specific date, is hereby
confirmed and ratified in all material respects and such representations and
warranties as so confirmed and ratified shall be deemed to have been made and
undertaken as of the date of this Amendment as well as at the time they were
made and undertaken.
(b) The Borrowers, jointly and severally, represent and warrant that:
(i) No Event of Default or Possible Default now exists or will
exist immediately following the execution hereof or after giving effect to the
transactions contemplated hereby.
(ii) All necessary corporate or shareholder actions on the part
of each Borrower, Holdco and each stockholder of Holdco to authorize the
execution, delivery and performance of this Amendment, the Amended Notes, and
all other amendments, agreements, documents or instruments required pursuant
hereto or thereto have been taken; this Amendment, the Amended Notes and each
such other amendment, agreement, document or instrument have been duly and
validly executed and delivered and are legally valid and binding upon each
Borrower that is a party thereto and enforceable in accordance with their
respective terms, except to the extent that the enforceability thereof may be
limited by bankruptcy, insolvency or like laws or by general equitable
principles.
(iii) The execution, delivery and performance of this Amendment,
the Amended Notes and all other amendments, agreements, documents and
instruments required pursuant hereto or thereto, and all actions and
transactions con templated hereby and thereby will not (A) violate, be in
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under (I) any provision of the charter documents or by-
laws of either Borrower, (II) any arbitration award or any order of any court or
of any other governmental agency or authority, (III) any license, permit or
authorization granted to either Borrower or under which either Borrower
operates, or (IV) any applicable law, rule, order or regulation, indenture,
agreement or other instrument to which either Borrower is a party or by which
either Borrower or any of its properties is bound and which has not been waived
or consented to, or (B) result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever, except as expressly permitted in the
Loan Agreement, upon any of the properties of either Borrower.
(iv) No consent, approval or authorization of, or filing,
registration or qualification with, any
-19-
governmental authority (including, without limitation, the FCC and any other
Licensing Authority) is required to be obtained by either Borrower or Holdco in
connection with the execution, delivery or performance of this Amendment, the
Amended Notes or any amendment, agreement, document or instrument required in
connection herewith or therewith which has not already been obtained or
completed.
6. Affirmation of the Borrowers. The Borrowers acknowledge that the
----------------------------
security interests and liens granted by the Borrowers to the Agent, for the
benefit of the Banks, pursuant to the Subsidiary Pledge Agreement dated June 26,
1996 between CTC-Del and KeyBank National Association, as agent, the Security
Agreement, the Mortgages and the other Collateral Documents, as amended pursuant
hereto, remain in full force and effect and shall continue to secure all
Obligations of the Borrowers as such Obligations may be increased pursuant
hereto.
7. Fees and Expenses. As required under the Original Agreement, the
-----------------
Borrowers, jointly and severally, will reimburse the Agent upon demand for all
out-of-pocket costs, charges and expenses of the Agent (including fees and
disbursements of special counsel to the Agent and local counsel to the Agent in
Puerto Rico) in connection with the preparation, negotiation, execution and
delivery of this Amendment and the other agreements or documents relating hereto
or required hereby.
8. Counterparts. This Amendment may be executed in as many counterparts
------------
as may be convenient and shall become binding when each Borrower, the Agent and
the Banks have executed at least one counterpart.
9. Governing Law. This Amendment shall be a contract made under and
-------------
governed by the laws of the State of Ohio, without regard to the conflicts of
law provisions thereof.
10. Binding Effect. This Amendment shall be binding upon and shall inure
--------------
to the benefit of the Borrowers, the Agent and the Banks and their respective
successors and assigns.
11. Reference to Original Agreement. Except as amended hereby, the
-------------------------------
Original Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects. On and after the effectiveness of the amendments
to the Original Agreement accomplished hereby, each reference in the Original
Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of like
import, and each reference to the Original Agreement or the original notes
issued pursuant thereto in any Note or other Collateral Document, or other
agreement, document or instrument executed and delivered pursuant to the
Original
-20-
Agreement, shall be deemed a reference to the Original Agreement, as amended
hereby, or the Amended Notes, as the case may be.
12. No Other Modifications; Same Indebtedness. Except as expressly
-----------------------------------------
provided in this Amendment, all of the terms and conditions of the Original
Agreement remain unchanged and in full force and effect. The modifications
effected by this Amendment and by the other documents and instruments
contemplated hereby shall not be deemed to provide for or effect a repayment and
re-advance of any of the Loans now outstanding, it being the intention of the
Borrowers, the Agent and the Banks that the Loans outstanding under the Original
Agreement, as amended by this Amendment, be and are the same Indebtedness as
that owing under the Original Agreement immediately prior to the effectiveness
hereof. It is not the intention of the parties to cause an extinctive novation
of the Original Agreement, any Collateral Document or the obligations
thereunder.
-21-
IN WITNESS WHEREOF, the parties have executed this Second Amendment to Loan
Agreement as of the date first above written.
BORROWERS:
CASTLE TOWER CORPORATION
By: /s/ XXX X. XXXXXX, XX.
---------------------------
Name: Xxx X. Xxxxxx, Xx.
-------------------------
Title: President
------------------------
CASTLE TOWER CORPORATION (PR)
By: /s/ XXX X. XXXXXX, XX.
---------------------------
Name: Xxx X. Xxxxxx, Xx.
-------------------------
Title: President
------------------------
BANKS:
KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXXX X. XXXXXX
---------------------------
Xxxxx X. Xxxxxx
Assistant Vice President
XXXXX FARGO BANK (TEXAS),
NATIONAL ASSOCIATION
By: /s/ XXXXXXX X. XXXXXXX
---------------------------
Xxxxxxx X. Xxxxxxx
Vice President
AGENT:
KEYBANK NATIONAL ASSOCIATION
By: /s/ XXXXX X. XXXXXX
---------------------------
Xxxxx X. Xxxxxx
Assistant Vice President
-22-
SCHEDULE 1
----------
List of Banks and Ratable Shares
--------------------------------
Working Capital Loan
Reducing Loan Amount Amount and Ratable
and Ratable Share of Share of Working
Banks: Reducing Commitment: Capital Commitment:
----- ------------------- ------------------
KeyBank $24,500,000 $500,000
(50%) (50%)
Xxxxx Fargo $24,500,000 $500,000
(50%) (50%)
LIST OF EXHIBITS
----------------
Exhibit A Form of Amended and Restated
Reducing Note
Exhibit B Form of Amended and Restated
Working Capital Note
Exhibit D Financial Statements
Exhibit E Projections
Exhibit F Capitalization
Exhibit G Proceedings, Litigation and Non-
Compliance with Law
Exhibit H Liens and Indebtedness
Exhibit I List of Contracts, Commitments and
Licenses
Exhibit J ERISA Liabilities and Plans
Exhibit K Real Property List
Exhibit L Form of Compliance Certificate
EXHIBIT A
---------
AMENDED AND RESTATED REDUCING REVOLVING CREDIT NOTE
---------------------------------------------------
$24,500,000 January __, 1997
FOR VALUE RECEIVED, CASTLE TOWER CORPORATION, a Delaware corporation ("CTC-
Del"), and CASTLE TOWER CORPORATION (PR), a Puerto Rican corporation ("CTC-PR",
and together with CTC-Del collectively the "Makers" and individually a "Maker"),
hereby jointly and severally promise to pay to the order of ___________ (the
"Payee"), on or before December 31, 2003, in the manner and at the place
provided in the Loan Agreement, as that term is defined below, the principal sum
of $24,500,000, or if less, the outstanding balance of the Reducing Loans, as
that term is defined in the Loan Agreement described below, made by the Payee.
The unpaid principal balance of this Note shall bear interest prior to
maturity at the rates determined in accordance with the provisions of that
certain Loan Agreement dated as of April 26, 1995, as amended by the First
Amendment to Loan Agreement dated as of June 26, 1996, and as amended by the
Second Amendment to Loan Agreement dated as of January __, 1997, among the
Makers, KeyBank National Association (formerly known as "Society National
Bank"), as Agent, the Payee and the other financial institutions as may from
time to time be parties thereto (as the same may be amended, modified, extended
or restated from time to time, the "Loan Agreement"). Interest accrued on each
Base Rate Loan shall be paid quarterly in arrears on each Quarterly Date after
the date hereof until such Loan is paid in full, and interest accrued on each
LIBOR Loan shall be paid on the last day of the Interest Period thereof.
This Note is an amendment and restatement of the Amended and Restated
Reducing Revolving Credit Note dated April 26, 1995, of CTC-Del to the Payee
(the "Original Note") and not a replacement, substitution or repayment thereof.
The indebtedness and liabilities of CTC-Del under the Original Note evidenced
hereby remain in full force and effect as amended, renewed and extended hereby.
This Note is subject to voluntary and mandatory prepayment in whole or in
part at the times and in the manner specified in the Loan Agreement.
The Payee may enter all amounts of principal borrowed, paid or prepaid at
any time on the grid annexed hereto or on any separate record thereof maintained
by the Payee.
This Note evidences indebtedness of the Makers to the Payee arising under
the Loan Agreement, to which reference is hereby made for a statement of the
rights of the Payee and the duties and obligations of the Makers in relation
thereto, but neither this reference to the Loan Agreement nor any provision
thereof shall affect or impair the absolute and unconditional obligation of the
Makers to pay the principal of and interest on this Note when due.
The principal of and all interest on this Note shall be paid as provided in
the Loan Agreement in immediately available funds constituting lawful money of
the United States of America, not later than 11:00 A.M. (Cleveland time) on the
day when due.
Upon the occurrence of any Event of Default, the entire outstanding
principal amount of this Note and (to the extent permitted by law) unpaid
interest shall bear interest thereafter until paid in full at the Default
Interest Rate which shall be payable on demand.
Subject to the provisions of Section 10 of the Loan Agreement, the entire
unpaid principal balance of this Note, together with all interest accrued
thereon, shall become immediately due and payable upon the occurrence of an
Event of Default. Upon the occurrence of any Event of Default, the holder
hereof shall have all of the rights, powers and remedies provided in the Loan
Agreement or in any Collateral Document or at law or in equity. Failure of the
Payee or any holder of this Note to exercise any such right or remedy available
hereunder or under the Loan Agreement or any Collateral Document or at law or in
equity shall not constitute a waiver of the right to exercise subsequently such
option or such other right or remedy.
The payment of this Note is secured by certain Security Agreements, certain
Pledge Agreements, certain Guarantees and certain Mortgages and Collateral
Assignments of Leases, all as more fully identified in the Loan Agreement.
To the extent permitted by law, except as otherwise provided herein or in
the Loan Agreement, the Makers and each endorser of this Note, and their
respective heirs, successors, legal representatives and assigns, hereby
severally waive presentment; protest and demand; notice of protest, demand,
dishonor and nonpayment; and diligence in collection, and agree to the
application of any bank balance as payment or part payment of this Note or as an
offset hereto as provided in the Loan Agreement, and further agree that the
holder hereof may release all or any part of the collateral given as security
for this Note or any rights of the holder thereunder and may amend this Note
(with the consent of the Makers), without notice to, and without in any way
affecting the liability of, the Makers or any endorser
-2-
of this Note, and their respective heirs, successors, legal representatives and
assigns.
If at any time the indebtedness evidenced by this Note is collected through
legal proceedings or this Note is placed in the hands of attorneys for
collection, the Makers and each endorser of this Note, and their respective
heirs, successors, legal representatives and assigns, hereby jointly and
severally agree to pay all costs and expenses (including reasonable attorneys'
fees if permitted by law) incurred by the holder of this Note in collecting or
attempting to collect such indebtedness.
The rate of interest payable on this Note from time to time shall in no
event exceed the maximum rate permissible under applicable law. If the rate of
interest payable on this Note is ever reduced as a result of the preceding
sentence and at any time thereafter the maximum rate permitted by applicable law
shall exceed the rate of interest provided for on this Note, then the rate
provided for on this Note shall be increased to the maximum rate permitted by
applicable law for such period as is required so that the total amount of
interest received by the Payee is that which would have been received by the
Payee but for the operation of the preceding sentence.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
PROVISIONS OF, THE LAW OF THE STATE OF OHIO, WITHOUT REGARD TO THE CONFLICTS OF
LAW PRINCIPLES THEREOF.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
CASTLE TOWER CORPORATION
By:
--------------------------
Name:
------------------------
Title:
-----------------------
CASTLE TOWER CORPORATION (PR)
By:
--------------------------
Name:
------------------------
Title:
-----------------------
-3-
REVOLVING CREDIT GRID
---------------------
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AMOUNT AMOUNT UNPAID OFFICER'S
DATE BORROWED PAID BALANCE INITIALS
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EXHIBIT B
---------
AMENDED AND RESTATED WORKING CAPITAL NOTE
-----------------------------------------
$500,000 January __, 1997
FOR VALUE RECEIVED, CASTLE TOWER CORPORATION, a Delaware corporation ("CTC-
Del"), and CASTLE TOWER CORPORATION (PR), a Puerto Rican corporation ("CTC-PR",
and together with CTC-Del collectively the "Makers" and individually a "Maker"),
hereby jointly and severally promise to pay to the order of _________ (the
"Payee"), on or before December 31, 2003, in the manner and at the place
provided in the Loan Agreement, as that term is defined below, the principal sum
of $500,000, or if less, the outstanding balance of the Working Capital Loans,
as that term is defined in the Loan Agreement described below, made by the
Payee.
The unpaid principal balance of this Note shall bear interest prior to
maturity at the rates determined in accordance with the provisions of that
certain Loan Agreement dated as of April 26, 1996, as amended by the First
Amendment to Loan Agreement dated as of June 26, 1996, as amended by the Second
Amendment to Loan Agreement dated as of January __, 1997, among the Makers,
KeyBank National Association (formerly known as "Society National Bank"), as
Agent, the Payee and the other financial institutions as may from time to time
be parties thereto (as the same may be amended, modified, extended or restated
from time to time, the "Loan Agreement"). Interest accrued on each Base Rate
Loan shall be paid quarterly in arrears on each Quarterly Date after the date
hereof until such Loan is paid in full, and interest accrued on each LIBOR Loan
shall be paid on the last day of the Interest Period thereof.
This Note is an amendment and restatement of the Amended and Restated
Working Capital Note dated June 26, 1996, of the Makers to the Payee (the
"Original Note") and not a replacement, substitution or repayment thereof. The
indebtedness and liabilities of the Makers under the Original Note evidenced
hereby remain in full force and effect as amended, renewed and extended hereby.
This Note is subject to voluntary and mandatory prepayment in whole or in
part at the times and in the manner specified in the Loan Agreement.
The Payee may enter all amounts of principal borrowed, paid or prepaid at
any time on the grid annexed hereto or on any separate record thereof maintained
by the Payee.
This Note evidences indebtedness of the Makers to the Payee arising under
the Loan Agreement, to which reference is hereby made for a statement of the
rights of the Payee and the duties and obligations of the Makers in relation
thereto, but neither this reference to the Loan Agreement nor any provision
thereof shall affect or impair the absolute and unconditional obligation of the
Makers to pay the principal of and interest on this Note when due.
The principal of and all interest on this Note shall be paid as provided in
the Loan Agreement in immediately available funds constituting lawful money of
the United States of America, not later than 11:00 A.M. (Cleveland time) on the
day when due.
Upon the occurrence of any Event of Default, the entire outstanding
principal amount of this Note and (to the extent permitted by law) unpaid
interest shall bear interest thereafter until paid in full at the Default
Interest Rate which shall be payable on demand.
Subject to the provisions of Section 10 of the Loan Agreement, the entire
unpaid principal balance of this Note, together with all interest accrued
thereon, shall become immediately due and payable upon the occurrence of an
Event of Default. Upon the occurrence of any Event of Default, the holder
hereof shall have all of the rights, powers and remedies provided in the Loan
Agreement or in any Collateral Document or at law or in equity. Failure of the
Payee or any holder of this Note to exercise any such right or remedy available
hereunder or under the Loan Agreement or any Collateral Document or at law or in
equity shall not constitute a waiver of the right to exercise subsequently such
option or such other right or remedy.
The payment of this Note is secured by certain Security Agreements, certain
Pledge Agreements, certain Guarantees and certain Mortgages and Collateral
Assignments of Leases, all as more fully identified in the Loan Agreement.
To the extent permitted by law, except as otherwise provided herein or in
the Loan Agreement, the Makers and each endorser of this Note, and their
respective heirs, successors, legal representatives and assigns, hereby
severally waive presentment; protest and demand; notice of protest, demand,
dishonor and nonpayment; and diligence in collection, and agree to the
application of any bank balance as payment or part payment of this Note or as an
offset hereto as provided in the Loan Agreement, and further agree that the
holder hereof may release all or any part of the collateral given as security
for this Note or any rights of the holder thereunder and may amend this Note
(with the consent of the Makers), without notice to, and without in any way
affecting the liability of, the Makers or any endorser
-2-
of this Note, and their respective heirs, successors, legal representatives and
assigns.
If at any time the indebtedness evidenced by this Note is collected through
legal proceedings or this Note is placed in the hands of attorneys for
collection, the Makers and each endorser of this Note, and their respective
heirs, successors, legal representatives and assigns, hereby jointly and
severally agree to pay all costs and expenses (including reasonable attorneys'
fees if permitted by law) incurred by the holder of this Note in collecting or
attempting to collect such indebtedness.
The rate of interest payable on this Note from time to time shall in no
event exceed the maximum rate permissible under applicable law. If the rate of
interest payable on this Note is ever reduced as a result of the preceding
sentence and at any time thereafter the maximum rate permitted by applicable law
shall exceed the rate of interest provided for on this Note, then the rate
provided for on this Note shall be increased to the maximum rate permitted by
applicable law for such period as is required so that the total amount of
interest received by the Payee is that which would have been received by the
Payee but for the operation of the preceding sentence.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE
PROVISIONS OF, THE LAW OF THE STATE OF OHIO, WITHOUT REGARD TO THE CONFLICTS OF
LAW PRINCIPLES THEREOF.
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
CASTLE TOWER CORPORATION
By:
--------------------------
Name:
------------------------
Title:
-----------------------
CASTLE TOWER CORPORATION (PR)
By:
--------------------------
Name:
------------------------
Title:
-----------------------
-3-
REVOLVING CREDIT GRID
---------------------
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AMOUNT AMOUNT UNPAID OFFICER'S
DATE BORROWED PAID BALANCE INITIALS
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ANNEX 1
-------
ACKNOWLEDGMENT AND AGREEMENT OF CASTLE TOWER HOLDING CORP.
----------------------------------------------------------
The undersigned hereby (a) certifies that it is the sole shareholder of
CTC-Del and consents to the execution and delivery by the Borrowers of the
foregoing Second Amendment to Loan Agreement and the Amended Notes described
therein, and (b) acknowledges and agrees (i) that the Pledge Agreement dated
June 26, 1996 between the undersigned and KeyBank National Association, as agent
(the "Spectrum Pledge Agreement"), the Holdco Pledge Agreement, the Guaranty and
each other Collateral Document (as those terms are defined in the Loan
Agreement, and as such documents may be amended pursuant to the Second Amendment
to Loan Agreement) to which it is a party, and all of its respective obligations
thereunder, remain in full force and effect, (ii) that the security interests
granted pursuant to such Spectrum Pledge Agreement and Holdco Pledge Agreement
secure all of the Obligations, as increased pursuant to the Second Amendment to
Loan Agreement, and (iii) that the Guaranteed Obligations, as that term is
defined in the Guaranty, include all of the Obligations, as increased pursuant
to the Second Amendment to Loan Agreement.
CASTLE TOWER HOLDING CORP.
By:
-------------------------
Name:
Title:
ANNEX 2
-------
ACKNOWLEDGMENT AND AGREEMENT OF
SPECTRUM SITE MANAGEMENT CORPORATION
------------------------------------
The undersigned hereby (a) consents to the execution and delivery by the
Borrowers of the foregoing Second Amendment to Loan Agreement and the Amended
Notes described therein, and (b) acknowledges and agrees (i) that the Security
Agreement dated June 26, 1996 between the undersigned and KeyBank National
Association, as agent (the "Security Agreement"), and the Guaranty executed by
the undersigned in favor of KeyBank National Association, as agent (the
"Guaranty") and each other Collateral Document (as defined in the Loan
Agreement, and as such documents may be amended pursuant to the Second Amendment
to Loan Agreement) to which it is a party, and all of its respective obligations
thereunder, remain in full force and effect, (ii) that the security interests
granted pursuant to such Security Agreement secure all of the Obligations, as
increased pursuant to the Second Amendment to Loan Agreement, and (iii) that the
Guaranteed Obligations, as that term is defined in the Guaranty, include all of
the Obligations, as increased pursuant to the Second Amendment to Loan
Agreement.
SPECTRUM SITE MANAGEMENT CORPORATION
By:
------------------------
Name:
Title:
ANNEX 3
-------
ACKNOWLEDGMENT AND AGREEMENT OF CENTENNIAL FUND IV, L.P.
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The undersigned hereby (a) certifies that it is a shareholder of Holdco and
consents to the execution and delivery by the Borrowers of the foregoing Second
Amendment to Loan Agreement and the Amended Notes described therein, and (b)
acknowledges and agrees (i) that the Stockholder Pledge Agreement, the
Stockholder Subordination Agreement and each other Collateral Document (as those
terms are defined in the Loan Agreement, and as such documents may be amended
pursuant to the Second Amendment to Loan Agreement) to which it is a party, and
all of its respective obligations thereunder, remain in full force and effect,
(ii) that the security interests granted pursuant to such Stockholder Pledge
Agreement secure all of the Obligations, as increased pursuant to the Second
Amendment to Loan Agreement, and (iii) that all of the Obligations, as increased
pursuant to the Second Amendment to Loan Agreement, constitute Senior Debt as
that term is defined in the Stockholder Subordination Agreement.
CENTENNIAL FUND IV, L.P.
By: Centennial Holdings IV, L.P.,
its general partner
By:
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Name:
Title:
