EXHIBIT 10.1
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FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is entered
into as of July 22, 2005, by and among SpectraSite Communications, Inc., a
Delaware corporation (the "BORROWER"), SpectraSite, Inc., a Delaware corporation
("HOLDCO"), Toronto Dominion (Texas) LLC, as administrative agent (the
"ADMINISTRATIVE AGENT") and the other Credit Parties signatory hereto (the
"CREDIT PARTIES").
W I T N E S S E T H:
WHEREAS, the Borrower, Holdco, the Administrative Agent and the Credit
Parties are parties to that certain Credit Agreement dated as of November 19,
2004 (as amended, restated, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among the Borrower, Holdco, TD Securities (USA)
LLC and Citigroup Global Markets Inc., as lead arrangers, TD Securities (USA)
LLC, Citigroup Global Markets Inc. and Deutsche Bank Securities, Inc., as joint
book runners, Deutsche Bank Securities, Inc., The Royal Bank of Scotland plc and
Xxxxxx Commercial Paper Inc., as co-arrangers and co-documentation agents,
Citicorp N.A., Inc., as syndication agent, the Administrative Agent and the
other Credit Parties (as defined in the Credit Agreement) party thereto; and
WHEREAS, on May 3, 2005, Holdco entered into an Agreement and Plan of
Merger (as amended, restated, supplemented or otherwise modified from time to
time to the extent permitted below, the "AMERICAN TOWER MERGER AGREEMENT"), with
American Tower Corporation, a Delaware corporation ("ATC"), and Asteroid Merger
Sub, LLC, a Delaware limited liability company ("ATC MERGER SUB"), a
wholly-owned Subsidiary of ATC, pursuant to which Holdco will merge with and
into ATC Merger Sub on the terms and subject to the conditions set forth therein
(such transaction hereinafter referred to as the "AMERICAN TOWER MERGER"); and
WHEREAS, upon consummation of the American Tower Merger, the Borrower
will become a wholly-owned indirect Subsidiary of ATC; and
WHEREAS, Holdco and the Borrower have requested, and the Administrative
Agent and the Credit Parties have agreed, to amend the Credit Agreement as and
to the extent set forth herein in order, among other things, to permit
consummation of the American Tower Merger and the transactions contemplated in
connection therewith;
NOW THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree that all capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement, as amended hereby, except as otherwise defined
or limited herein, and further agree, subject to the conditions precedent to
this Amendment hereinafter set forth, as follows:
1. AMENDMENTS TO CREDIT AGREEMENT TO BE EFFECTIVE IMMEDIATELY. The
following amendments to the Credit Agreement shall be effective as of the First
Amendment Effective Date:
(a) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby amended by adding the following definitions in the appropriate
alphabetical order:
"AMERICAN TOWER MERGER" shall mean the merger of Holdco
with and into ATC Merger Sub pursuant to the terms and
conditions of the American Tower Merger Agreement.
"AMERICAN TOWER MERGER AGREEMENT" shall mean that
certain Agreement and Plan of Merger dated as of May 3, 2005,
among ATC, ATC Merger Sub and SpectraSite, Inc., and all
schedules and exhibits thereto and all documents executed in
connection therewith, as the same may be amended, restated,
supplemented or otherwise modified from time to time in
accordance with the First Amendment to Credit Agreement dated as
of the First Amendment Effective Date.
"ATC" shall mean American Tower Corporation, a Delaware
corporation.
"ATC MERGER SUB" shall mean Asteroid Merger Sub, LLC, a
Delaware limited liability company, which is a direct,
wholly-owned Subsidiary of ATC.
"CUMULATIVE EBITDA" shall mean, as of any calculation
date, the result of (a) the sum of (i) EBITDA with respect to
the Other Operations, plus (ii) EBITDA with respect to the Tower
Operations, less (b) Corporate Overhead, in each case for the
period from January 1, 2005 through the last day of the fiscal
quarter of the Borrower immediately preceding such calculation
date for which financial statements have been provided pursuant
to SECTION 7.1 or SECTION 7.2, as applicable.
"FIRST AMENDMENT EFFECTIVE DATE" shall mean July 22,
2005.
"MERGER EFFECTIVE DATE" shall mean the date on which the
American Tower Merger shall be consummated.
(b) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by amending and restating clause (b) of the definition
of "EBITDA" as follows:
"(b) to the extent deducted in determining Net Income,
the result of (i) the sum of each of the following for such
period: (A) Borrower Interest Expense, (B) income tax expense,
(C) depreciation and amortization, (D) extraordinary losses, (E)
all other non-cash interest or charges (including, without
limitation, any non-cash losses in respect of Interest Hedge
Agreements, non-cash impairment charges, non-cash valuation
charges for stock option grants or vesting of restricted stock
awards, and non-cash losses from the early extinguishment of
Indebtedness) and (F) non-recurring charges, restructuring
charges, transaction expenses (including, without limitation,
transaction expenses incurred in connection with the
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American Tower Merger and the transactions contemplated thereby)
and underwriters' fees, and severance and retention payments in
connection with the American Tower Merger and the transactions
contemplated thereby, less (ii) the sum of (A) extraordinary
gains and cash payments (not otherwise deducted in determining
Net Income) made during such period with respect to non-cash
charges that were added back in a prior period, and (B) all
non-cash gains in respect of Interest Hedge Agreements;"
(c) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by amending and restating the definition of "Holdco" as
follows:
"HOLDCO" shall mean (a) prior to the date Super-Holdco is
formed, (i) prior to the Merger Effective Date, SpectraSite, Inc., a
Delaware corporation, and (ii) from and after the Merger Effective
Date, ATC Merger Sub (as successor by merger to SpectraSite, Inc.), in
each case which owns 100% of the issued and outstanding Equity
Interests of the Borrower, and (b) from and after the date Super-Holdco
is formed, Super-Holdco, which owns 100% of the issued and outstanding
Equity Interests of Intermediate Holdco.
(d) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by amending and restating clause (b) in the definition of
"Holdco EBITDA" as follows:
"(b) to the extent deducted in determining Holdco Net
Income, the result of (i) the sum of each of the following for
such period: (A) Holdco Interest Expense, (B) income tax
expense, (C) depreciation and amortization, (D) extraordinary
losses, (E) all other non-cash interest or charges (including,
without limitation, any non-cash losses in respect of Interest
Hedge Agreements, non-cash impairment charges, non-cash
valuation charges for stock option grants or vesting of
restricted stock awards, and non-cash losses from the early
extinguishment of Indebtedness) and (F) non-recurring charges,
restructuring charges, transaction expenses (including, without
limitation, transaction expenses incurred in connection with the
American Tower Merger and the transactions contemplated thereby)
and underwriters' fees, and severance and retention payments in
connection with the American Tower Merger and the transactions
contemplated thereby, less (ii) the sum of (A) extraordinary
gains and cash payments (not otherwise deducted in determining
Holdco Net Income) made during such period with respect to
non-cash charges that were added back in a prior period, and (B)
all non-cash gains in respect of Interest Hedge Agreements;"
(e) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by deleting the phrase "negative pledge or other
agreement not to pledge," from the definition of "Lien".
(f) Section 5.1(t) of the Credit Agreement, ENVIRONMENTAL
MATTERS, is hereby deleted in its entirety and "[Intentionally Omitted]"
substituted in lieu thereof.
(g) Section 6.3 of the Credit Agreement, MAINTENANCE OF
PROPERTIES AND ASSETS, is hereby amended and restated in its entirety as
follows:
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"Section 6.3 MAINTENANCE OF PROPERTIES AND ASSETS. The
Borrower will, and will cause each of its Restricted
Subsidiaries to, maintain or cause to be maintained in the
ordinary course of business in good repair, working order and
condition (reasonable wear and tear excepted) all properties
(including, without limitation, all Towers) used in their
respective businesses (whether owned or held under lease), and
from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions,
betterments and improvements thereto except where the failure to
do so would not materially adversely affect or apply to any
Material Towers."
(h) Section 6.4 of the Credit Agreement, ACCOUNTING METHODS
AND FINANCIAL RECORDS, is hereby amended and restated in its entirety as
follows:
"Section 6.4 ACCOUNTING METHODS AND FINANCIAL RECORDS.
The Borrower will maintain, and will cause each of its
Restricted Subsidiaries to maintain, on a consolidated and
consolidating basis, a system of accounting established and
administered in accordance with GAAP consistently applied, keep
adequate records and books of account in which complete entries
will be made in accordance with GAAP and reflecting all
transactions required to be reflected by GAAP. The Borrower and
its Restricted Subsidiaries will maintain a fiscal year ending
on December 31."
(i) Section 6.5 of the Credit Agreement, INSURANCE, is
hereby amended by deleting subsection (d) thereof in its entirety.
(j) Section 6.12 of the Credit Agreement, ENVIRONMENTAL
MATTERS, is hereby deleted in its entirety and "[Intentionally Omitted]"
substituted in lieu thereof.
(k) Section 8.4 of the Credit Agreement, AMENDMENT AND
WAIVER, is hereby amended and restated in its entirety as follows:
"Section 8.4 AMENDMENT AND WAIVER. The Borrower shall
not, and shall cause each of its Restricted Subsidiaries not to,
without the prior written consent of the Administrative Agent,
enter into any amendment, or agree to or accept any waiver, (a)
which would materially adversely affect the rights of the
Borrower and the Credit Parties, or any of them, of any of the
provisions of its organizational documents, including, without
limitation, its certificate or articles of incorporation (other
than any increase in the number of authorized shares) and
by-laws or (b) of any of the provisions of any documents
evidencing or relating to the issuance of any Permitted Holdco
Debt which amendment or waiver would cause the terms and
conditions of such Permitted Holdco Debt not to be in compliance
with the requirements set forth in the definition of `Permitted
Holdco Debt'."
(l) Section 8.5 of the Credit Agreement, LIQUIDATION;
MERGER; ACQUISITION OR DISPOSITION OF ASSETS, is hereby amended by amending and
restating clause (ii)(B) thereof in its entirety as follows:
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"(B) the assets subject to such disposition contribute,
in the aggregate, (I) together with all other assets disposed of
during the same fiscal quarter, less than fifteen percent (15%)
of Annualized EBITDA calculated as of the last day of the fiscal
quarter of the Borrower most recently ended for which the
financial statements referred to in SECTION 7.1 or SECTION 7.2,
as applicable, have been delivered by the Borrower to the
Administrative Agent, and (II) together with all other assets
disposed of since January 1, 2005, less than twenty-five percent
(25%) of Cumulative EBITDA calculated as of the last day of the
fiscal quarter of the Borrower most recently ended for which the
financial statements referred to in SECTION 7.1 or SECTION 7.2,
as applicable, have been delivered by the Borrower to the
Administrative Agent; PROVIDED, HOWEVER, that, in the case of an
exchange or swap of assets, only the excess, if any, of (x) the
portion of Annualized EBITDA or Cumulative EBITDA, as
applicable, attributable to the assets being disposed of, over
(y) the portion of Annualized EBITDA or Cumulative EBITDA
attributable to the assets being acquired, shall be included in
calculating Annualized EBITDA or Cumulative EBITDA for purposes
of the Annualized EBITDA and Cumulative EBITDA tests set forth
above;"
(m) Section 8.6 of the Credit Agreement, GUARANTIES, is
hereby amended by deleting "and" immediately prior to clause (e) thereof and by
adding the following immediately before the period at the end thereof:
", and (f) obligations under any Permitted Acquisition
Documents, under any leases of real property, or under any
agreements entered into in connection with the acquisition or
furnishing of services, supplies and equipment in the ordinary
course of business of the Borrower or any of its Restricted
Subsidiaries"
(n) Section 8.10 of the Credit Agreement, NEGATIVE PLEDGE,
is hereby deleted in its entirety.
(o) Section 9.1 of the Credit Agreement, BORROWER LEVERAGE
RATIO, is hereby amended and restated in its entirety as follows:
"Section 9.1 BORROWER LEVERAGE RATIO. The Borrower shall
not permit as of the end of any fiscal quarter ended during the
term of this Agreement, or as of the date of any Advance under
this Agreement, the Borrower Leverage Ratio (if applicable,
after giving effect to such Advance) to exceed the applicable
ratio for such date during the periods as forth below:
QUARTERS ENDING: RATIO:
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First Amendment Effective Date through
September 30, 2006 5.50 to 1.00
October 1, 2006 through September 30, 2007 5.25 to 1.00
October 1, 2007 through September 30, 2008 5.00 to 1.00
October 1, 2008 through September 30, 2009 4.75 to 1.00
October 1, 2009 and thereafter 4.50 to 1.00"
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2. AMENDMENTS TO CREDIT AGREEMENT TO BE EFFECTIVE UPON CONSUMMATION
OF THE AMERICAN TOWER MERGER. The following amendments to the Credit Agreement
shall be effective as of the Merger Effective Date immediately upon the
consummation of the American Tower Merger:
(a) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby amended by adding the following definitions in the appropriate
alphabetical order:
"AFFILIATE EXPENSE PAYMENTS" shall mean payments by, or
payables of, the Borrower or any of its Subsidiaries to, or on
behalf of, any Affiliate of the Borrower in accordance with the
Shared Services Agreement (including, without limitation,
payments in respect of Anticipated Costs of such Person), in
each case to the extent such payments would properly be
characterized as operating expenses of the Borrower or any of
its Restricted Subsidiaries in accordance with GAAP.
"AFFILIATE OVERHEAD PAYMENTS" shall mean payments by, or
payables of, the Borrower or any of its Subsidiaries to, or on
behalf of, any direct or indirect parent company of the Borrower
in accordance with the Shared Services Agreement (including,
without limitation, payments in respect of Anticipated Costs of
such Person), in each case to the extent such payments would
properly be characterized as corporate overhead of the Borrower
or any of its Restricted Subsidiaries in accordance with GAAP.
"ANTICIPATED COSTS" shall mean, with respect to any
Person, (a) reasonable and customary administration and overhead
expenses of such Person (including, without limitation, (i)
corporate franchise fees and taxes actually owed by such Person,
(ii) legal and accounting fees and expenses actually incurred by
such Person, (iii) costs incurred to comply with such Person's
reporting obligations under federal or state laws, including,
without limitation, reports filed with respect to the Securities
Act, the Exchange Act or the respective rules and regulations
promulgated thereunder, and (iv) other customary corporate
overhead expense), (b) reasonable transaction costs of such
Person relating to financings, (c) prepaid expenses, (d) Capital
Expenditures, and (e) other expenses or other payments
reasonably acceptable to the Administrative Agent.
"ATC SUBSIDIARIES" shall mean, collectively, all direct
and indirect Subsidiaries of ATC (other than Holdco and its
direct and indirect Subsidiaries).
"FINANCIAL STATEMENT CUT-OFF DATE" shall mean the date
during the fiscal quarter in which the Merger Effective Date
shall have occurred that is determined by the Borrower to be the
cut-off date under GAAP for the stub period financial statements
created in connection with the consummation of the American
Tower Merger.
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"SHARED SERVICES AGREEMENT" shall mean, collectively,
one or more agreements approved by a resolution of the Board of
Directors of ATC and of the Borrower, among one or more of ATC,
the ATC Subsidiaries, Holdco and the Borrower, among others, for
the provision of managerial, consulting, administrative and
other services to the Borrower and its Subsidiaries or in
respect of Anticipated Costs of any Affiliate of the Borrower,
in each case on terms that are no less favorable to the Borrower
and its Subsidiaries than those that would have been obtained in
a comparable arm's-length transaction by the Borrower and its
Subsidiaries with a non-Affiliate; PROVIDED, HOWEVER, that the
payment of Affiliate Overhead Payments shall be deemed to meet
the foregoing arm's-length transaction requirement to the extent
that the allocation of such amounts between the ATC Subsidiaries
and the Borrower and its Subsidiaries is made on a commercially
reasonable and equitable basis.
"TAX SHARING AGREEMENT" shall mean, collectively, one or
more agreements approved by a resolution of the Board of
Directors of ATC and of the Borrower among one or more of ATC,
the ATC Subsidiaries, Holdco and the Borrower, among others,
with respect to the allocation of tax liabilities and other
tax-related items among such Persons, based principally upon the
financial income, taxable income, credits and other amounts
directly related to the respective parties.
(b) Article 1 of the Credit Agreement, DEFINITIONS, is hereby
further amended by inserting "or SECTION 7.2, as applicable," immediately
following the reference to "SECTION 7.1" at the end of clause (a) in the
definition of "Additional Investment Availability".
(c) Article 1 of the Credit Agreement, DEFINITIONS, is hereby
further amended by amending and restating clauses (a) and (b) of the definition
of "Change of Control" as follows:
"(a) any "person" or "group" (as each such term is
used in Sections 13(d) and 14(d) of the Exchange Act) is or
becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that for purposes of this
clause (a) such person shall be deemed to have `beneficial
ownership' of all shares that any such person has the right to
acquire (whether by warrants, options or otherwise), whether
such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than fifty percent
(50%) of the total voting power of the Voting Stock of ATC; or"
"(b) during any period of two (2) consecutive years
(or, in the case this event occurs within the two (2) year
period following the Merger Effective Date, such shorter period
as shall have begun on the Merger Effective Date), individuals
who at the beginning of such period constituted the board of
directors of ATC (together with any new directors whose election
by such board of directors or whose nomination for election by
the shareholders of ATC was approved by a vote of a majority of
the directors of ATC then still in office who were either
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directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for
any reason to constitute a majority of the board of directors of
ATC then in office; or"
(d) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by inserting the following immediately before to the
period at the end of the definition of "Change of Control":
"; or
(h) the failure of ATC to own and control, directly or
indirectly, one hundred percent (100%) of the issued and outstanding
Equity Interests of Holdco.
(e) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by inserting the parenthetical "(including, without
limitation, but without duplication, the amount of any Affiliate Overhead
Payments)" at the end of clause (a) of the definition of "Corporate Overhead".
(f) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by amending and restating sub-clauses (ii) and (v) in
clause (b) of the definition of "Excess Cash Flow" as follows:
"(ii) taxes payable in cash by the Borrower and its
Restricted Subsidiaries and amounts payable by the Borrower and
its Restricted Subsidiaries pursuant to the Tax Sharing
Agreement, in each case during or in respect of such fiscal
quarter;"
"(v) the amount of any Restricted Payments (other than
Specified Holdco Distributions) made to any direct or indirect
parent company of the Borrower during such fiscal quarter
(including, without limitation, any Affiliate Overhead Payments)
to the extent that such Restricted Payments were not already
taken into account in connection with the calculation of EBITDA
for such fiscal quarter;"
(g) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by amending and restating clauses (d) and (e) of the
definition of "Fixed Charges" as follows:
"(d) taxes payable in cash and amounts payable pursuant
to the Tax Sharing Agreement; and (e) the amount of any
Restricted Payments (other than any Specified Holdco
Distributions) made to any direct or indirect parent company of
the Borrower (including, without limitation, any Affiliate
Overhead Payments) to the extent that such Restricted Payments
were not already taken into account in connection with the
calculation of EBITDA for such period"
(h) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by amending and restating the definition of "GAAP" as
follows:
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"GAAP" shall mean (i) for all periods prior to the
American Tower Merger, generally accepted accounting principles
in the United States, consistently applied and (ii) for all
periods from and after the American Tower Merger, generally
accepted accounting principles in the United States,
consistently applied by ATC and taking into account the effects
of the American Tower Merger.
(i) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by amending and restating the definition of "Net Income"
as follows:
"NET INCOME" shall mean, for any period of
determination, (a) net income of the Borrower and its Restricted
Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP, less (b) to the extent not
already deducted therefrom, the amount of any Affiliate Expense
Payments accrued in accordance with GAAP during such period.
(j) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further amended by amending and restating clause (d) in the definition of
"Specified Holdco Distributions" as follows:
"(d) at any time that the Total Leverage Ratio is less
than or equal to 6.00 to 1.00, Restricted Payments to, or
Restricted Purchases from, any direct or indirect parent company
of the Borrower to repurchase shares of such Person's common
Equity Interests, pay dividends to such Person's shareholders,
or for any other general corporate purposes of such Person"
(k) For purposes of clarification only, Section 2.3(f) of
the Credit Agreement, APPLICABLE MARGINS FOR BASE RATE ADVANCES AND EURODOLLAR
ADVANCES, is hereby amended by amending and restating the paragraphs before and
after the pricing table set forth in clause (i) thereof as follows:
"(i) ADVANCES UNDER THE REVOLVING LOAN COMMITMENTS OR OF
THE TERM A LOANS. With respect to any Advance under the
Revolving Loan Commitments, or any Advance of the Term A Loans,
the Applicable Margin shall be the interest rate margin based
upon the Borrower Leverage Ratio for the most recent fiscal
quarter end, effective as of the second (2nd) Business Day after
the financial statements referred to in SECTION 7.1 or SECTION
7.2, as applicable, are delivered by the Borrower to the
Administrative Agent for the fiscal quarter of the Borrower most
recently ended, expressed as a per annum rate of interest as
follows:"
"In the event that the Borrower fails to timely provide (I) the
financial statements referred to above in accordance with the
terms of SECTION 7.1 or SECTION 7.2, as applicable, or (II) the
Compliance Certificate referred to in SECTION 7.3, and without
prejudice to any additional rights under SECTION 2.3(d) or
SECTION 10.2, no downward adjustment of the Applicable Margin in
effect for the preceding quarter shall occur until the actual
delivery of such statements, and from such failure and
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until such delivery, the Applicable Margin shall be (x) 2.00%
with respect to each Eurodollar Advance, and (y) 1.00% with
respect to each Base Rate Advance."
(l) Section 6.15 of the Credit Agreement, COVENANTS REGARDING
ADDITIONAL COLLATERAL, is hereby amended by adding the following paragraph at
the end thereof:
"Notwithstanding anything to the contrary contained
herein, from and after consummation of the American Tower
Merger, neither ATC nor any of the ATC Subsidiaries shall be
deemed to constitute Super-Holdco for any purpose under this
Agreement or the other Loan Documents. The Credit Parties hereby
acknowledge that the Collateral shall not include, and that
there shall be no recourse for the Obligations to, the stock or
assets of ATC or any of the ATC Subsidiaries."
(m) Section 7.1 of the Credit Agreement, QUARTERLY FINANCIAL
STATEMENTS AND INFORMATION, is hereby amended and restated in its entirety as
follows:
"Section 7.1 QUARTERLY FINANCIAL STATEMENTS AND
INFORMATION. Within forty-five (45) days after the last day of
each of the first three (3) fiscal quarters of each fiscal year
of the Borrower, the unaudited balance sheets of the Borrower,
on a consolidated basis with its Restricted Subsidiaries and on
a consolidating basis with its Unrestricted Subsidiaries, as at
the end of such quarter and as of the end of the preceding
fiscal year, and the related statement of operations and the
related statement of cash flows of the Borrower, on a
consolidated basis with its Restricted Subsidiaries and on a
consolidating basis with its Unrestricted Subsidiaries, for such
quarter and for the elapsed portion of the year ended with the
last day of such quarter, which, in the case of financial
statements delivered for periods ending on or after the first
anniversary of the Financial Statement Cut-off Date, shall set
forth in comparative form such figures as at the end of and for
such quarter and for the appropriate prior period and which
shall be certified by a Financial Officer of the Borrower to
have been prepared in accordance with GAAP and to present
fairly, in all material respects, the financial position of the
Borrower, on a consolidated basis with its Restricted
Subsidiaries and on a consolidating basis with its Unrestricted
Subsidiaries, as at the end of such period and the results of
operations for such period, and for the elapsed portion of the
year ended with the last day of such period, subject only to
year-end and normal audit adjustments; PROVIDED that,
notwithstanding anything to the contrary in this SECTION 7.1, no
financial statements delivered pursuant to this SECTION 7.1
shall be required to include footnotes. Notwithstanding the
foregoing, if the Financial Statement Cut-off Date shall not
occur at the end of a fiscal quarter, the financial statements
required to be delivered under this SECTION 7.1 for the fiscal
quarter in which the Financial Statement Cut-off Date shall have
occurred shall be (x) for the period commencing on the first day
of the fiscal quarter in which the Financial Statement Cut-off
Date shall have occurred and ending on the Financial Statement
Cut-off Date, and (y) for the period commencing on the Financial
Statement Cut-off Date and ending on the last day of the fiscal
quarter in which the Financial Statement Cut-off Date shall have
occurred."
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(n) Section 7.2 of the Credit Agreement, ANNUAL FINANCIAL
STATEMENTS AND INFORMATION, is hereby amended and restated in its entirety as
follows:
"Section 7.2 ANNUAL FINANCIAL STATEMENTS AND
INFORMATION. Within one hundred twenty (120) days after the end
of each fiscal year of the Borrower, the audited consolidated
balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related audited consolidated
statement of operations for such fiscal year, which, for periods
ending on or after the first anniversary of the Financial
Statement Cut-off Date, shall set forth in comparative form the
figures as at the end of and for the previous fiscal year, and
the related audited consolidated statements of cash flow and
stockholders' equity for such fiscal year, which, for periods
ending on or after the first anniversary of the Financial
Statement Cut-off Date, shall set forth in comparative form the
figures as at the end of and for the previous fiscal year, which
shall be accompanied by an opinion of Deloitte & Touche, LLP, or
other independent certified public accountants of recognized
national standing acceptable to the Administrative Agent,
together with a statement of such accountants (unless the giving
of such statement is contrary to accounting practice for the
continuing independence of such accountants) that, in connection
with their audit, nothing came to their attention that caused
them to believe that the Borrower was not in compliance with the
Financial Covenants insofar as they relate to accounting
matters. Notwithstanding the foregoing, (x) the Borrower will
furnish, within one hundred twenty (120) days of the Financial
Statement Cut-off Date, the financial statements required to be
delivered under this SECTION 7.2 for the period from January 1,
2005, to the Financial Statement Cut-off Date, and (y) the
financial statements required to be delivered under this SECTION
7.2 for the fiscal year ended December 31, 2005, shall be for
the period from the Financial Statement Cut-off Date through
December 31, 2005."
(o) Section 7.3 of the Credit Agreement, COMPLIANCE
CERTIFICATES, is hereby amended and restated in its entirety as follows:
"Section 7.3 COMPLIANCE CERTIFICATES. At the time the
financial statements are furnished pursuant to SECTION 7.1 or
SECTION 7.2, a Compliance Certificate:
(a) setting forth as at the end of such fiscal
quarter, the arithmetical calculations required to establish (i)
the Applicable Margin, (ii) whether the Borrower was in
compliance with the requirements of the Financial Covenants, and
(iii) whether the Borrower was in compliance with the
requirements of SECTION 6.11;
(b) containing a list of all Acquisitions,
Investments (other than those made pursuant to SECTIONS 8.2(a),
(b), (e), (f), (g), (h) AND (j)), Restricted Payments (other
than pursuant to the Tax Sharing Agreement or the Shared
Services Agreement), dispositions of assets (other than
dispositions of assets in the ordinary course of business) and
any outstanding Capitalized Lease Obligations made or
11
entered into from the date of the most recently delivered prior
Compliance Certificate through the date of such certificate
together with the total amount for each of the foregoing
categories; and
(c) stating that, to the best of his or her
knowledge, no Default or Event of Default has occurred as at the
end of such period, or, if a Default or an Event of Default has
occurred, disclosing each such Default or Event of Default and
its nature, when it occurred, whether it is continuing and the
steps being taken by the Borrower with respect to such Default
or Event of Default.
Notwithstanding anything to the contrary contained herein, the
information set forth in any Compliance Certificate delivered in
connection with the financial statements required to be
delivered pursuant to SECTION 7.1 for the fiscal quarter ending
September 30, 2005 shall be based upon the financial statements
provided pursuant to clauses (x) and (y) of the last sentence of
SECTION 7.1."
(p) Section 7.4 of the Credit Agreement, COPIES OF OTHER
REPORTS, is hereby amended by amending and restating subsection (f) thereof:
"(f) To the extent not covered elsewhere in this
Article 7, promptly after the sending thereof, copies of all
material financial statements, reports and other information (i)
which Holdco, Intermediate Holdco (if any), the Borrower or any
of its Restricted Subsidiaries sends to any holder of its Funded
Debt or its securities, or (ii) which Holdco, Intermediate
Holdco (if any), the Borrower or any of its Restricted
Subsidiaries publicly files with the Securities and Exchange
Commission or any national securities exchange, or (iii) to the
extent relating to Holdco, Intermediate Holdco (if any), the
Borrower or any of its Restricted Subsidiaries, which ATC
publicly files with the Securities and Exchange Commission or
any national securities exchange; PROVIDED, HOWEVER, that with
respect to filings with the Securities and Exchange Commission
copies of such filings shall be deemed to have been provided to
the Lenders if made publicly available by the Securities and
Exchange Commission on the XXXXX or similar system or by any of
ATC or the Borrower or Holdco on its internet website."
(q) Section 7.4 of the Credit Agreement, COPIES OF OTHER
REPORTS, is hereby further amended by adding the following new subsection (g)
at the end thereof:
"(g) Promptly upon the execution thereof, copies of
(i) the Tax Sharing Agreement, (ii) the Shared Services
Agreement, and (iii) any material amendment to the Tax Sharing
Agreement or the Shared Services Agreement."
(r) Section 7.5 of the Credit Agreement, NOTICE OF
LITIGATION AND OTHER MATTERS, is hereby amended by deleting "five (5) Business
Days" from the introductory paragraph and by substituting "fifteen (15) days"
in lieu thereof.
12
(s) Section 8.7 of the Credit Agreement, RESTRICTED PAYMENTS
AND PURCHASES, is hereby amended and restated in its entirety as follows:
"Section 8.7 RESTRICTED PAYMENTS AND PURCHASES. The
Borrower shall not, and shall cause each of its Restricted
Subsidiaries not to, directly or indirectly declare or make any
Restricted Payment or Restricted Purchase, except that (a) the
Borrower may make (i) Affiliate Expense Payments, (ii) Affiliate
Overhead Payments, (iii) payments pursuant to the Shared
Services Agreement in respect of any Anticipated Costs of its
Affiliates, and (iv) payments pursuant to the Tax Sharing
Agreement, and (b) so long as no Default or Event of Default
then exists or would result therefrom, the Borrower may (i) make
Restricted Payments to any direct or indirect parent company of
the Borrower to enable such Person to make the following
payments when due: (A) dividend or interest payments, as
applicable, on Permitted Holdco Debt, and (B) payments to
repurchase Equity Interests in any direct or indirect parent
company of the Borrower owned by employees, officers and
directors of the Borrower, any of its Subsidiaries, or of any
direct or indirect parent company of the Borrower, upon their
death, disability or termination of employment or service, in an
aggregate amount not to exceed $10,000,000 during any year or
$15,000,000 during the term of this Agreement; (ii) make
Restricted Payments to any direct or indirect parent company of
the Borrower to enable such Person to repurchase fractional
shares of the common Equity Interests of any direct or indirect
parent company of the Borrower resulting from the consummation
of any reverse stock split effected by such Person in aggregate
amount not to exceed $400,000 during the term of this Agreement;
and (iii) make Specified Holdco Distributions."
(t) Section 8.8 of the Credit Agreement, AFFILIATE
TRANSACTIONS, is hereby amended by adding the following immediately before the
period at the end thereof:
"(e) with respect to the entering into of the Tax
Sharing Agreement and payments thereunder; and (f) with respect
to the entering into of the Shared Services Agreement and
payments thereunder"
(u) Section 8.9 of the Credit Agreement, CORPORATE NAME;
CORPORATE STRUCTURE; BUSINESS, is hereby amended by adding the following
sentence at the end thereof:
"Notwithstanding anything to the contrary contained in
the foregoing, thirty (30) days' notice shall not be required in
connection with the American Tower Merger and the transactions
contemplated thereby; PROVIDED, that the Borrower shall provide
the Administrative Agent with prompt notice following any such
name change.
(v) Section 10.1 of the Credit Agreement, EVENTS OF DEFAULT,
is hereby amended by inserting "ATC," immediately before each reference to
"Holdco" in subsections (e) and (f) thereof.
13
(w) Section 13.1 of the Credit Agreement, NOTICES, is hereby
amended by amending and restating clause (a)(i) in its entirety as follows:
"(i) If to the Borrower, to it at:
SpectraSite Communications, Inc.
c/o American Tower Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Chief Financial Officer
and General Counsel
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy No.: (000) 000-0000"
(x) Exhibit D to the Credit Agreement, FORM OF COMPLIANCE
CERTIFICATE, is hereby deleted in its entirety and EXHIBIT D attached hereto is
substituted in lieu thereof.
3. CONSENT TO AMERICAN TOWER MERGER. By their signatures set forth
below and on the Lender Addenda contemplated in Section 9 below, notwithstanding
anything to the contrary contained in the Credit Agreement or the other Loan
Documents, the Administrative Agent and the Majority Lenders hereby consent to
the consummation of the American Tower Merger. Holdco and the Borrower hereby
agree not to enter into any amendment to, or agree to or accept any waiver of,
any of the provisions of the Merger Agreement to the extent that such amendment
or waiver, individually or in the aggregate, could reasonably be expected to
have a Materially Adverse Effect without the consent of the Majority Lenders.
Holdco and the Borrower hereby further agree that, promptly upon consummation of
the American Tower Merger, Holdco will deliver to the Administrative Agent a
duly executed agreement, in form and substance reasonably satisfactory to the
Administrative Agent, reaffirming Holdco's obligations under the Credit
Agreement and the other Loan Documents.
4. NO OTHER AMENDMENTS, CONSENTS OR WAIVERS. Except for the
amendments, consents and waivers set forth above, the text of the Credit
Agreement and the other Loan Documents shall remain unchanged and in full force
and effect, and the Administrative Agent and the Credit Parties hereby reserve
the right to require strict compliance with the terms of the Credit Agreement
and the other Loan Documents in the future.
5. CONDITIONS TO EFFECTIVENESS. This Amendment will be effective
as of the date first written above (the "FIRST AMENDMENT EFFECTIVE DATE") except
as otherwise set forth herein, subject to the occurrence of each of the
following on or before such date:
14
(a) The Administrative Agent shall have received
counterparts hereof duly executed by the Borrower and Holdco, and a Lender
Addendum duly executed by each of the Majority Lenders as provided in Section 9
of this Amendment.
(b) The Administrative Agent shall have received an updated
business plan and updated Projections for the Borrower and its Restricted
Subsidiaries.
(c) All of the representations and warranties of Holdco and
the Borrower set forth in the Credit Agreement and this Amendment, other than
those that are expressly made as of a specific date, shall be true and correct
in all material respects with the same effect as though such representations and
warranties had been made on and as of the First Amendment Effective Date as
though made on and as of such date.
(d) The Credit Parties shall have received payment of all
fees and expenses due and payable on the First Amendment Effective Date in
respect of the Credit Agreement, this Amendment and the transactions
contemplated hereby and thereby.
6. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and Holdco,
for itself and on behalf of each of its Subsidiaries, agrees, represents and
warrants in favor of the Administrative Agent and the Credit Parties that:
(a) This Amendment has been executed and delivered by duly
authorized representatives of the Borrower and Holdco, and the Credit Agreement,
as modified and amended by this Amendment, constitutes a legal, valid and
binding obligation of the Borrower and Holdco and is enforceable against the
Borrower and Holdco in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by the application of general equitable
principles;
(b) Each representation or warranty of Holdco, the Borrower
and the Designated Subsidiaries set forth in the Credit Agreement is hereby
restated and reaffirmed as true and correct in all material respects on and as
of the date of this Amendment, and after giving effect to this Amendment, as if
such representation or warranty were made on and as of the date of, and after
giving effect to, this Amendment (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period);
(c) As of the date hereof, no Default or Event of Default
with respect to the Borrower or Holdco has occurred and is continuing; and
(d) As of the date hereof, (i) the property of the Borrower,
at a fair valuation on a going concern basis, will exceed its debt; (ii) the
capital of the Borrower will not be unreasonably small to conduct its business;
and (iii) the Borrower will not have incurred debts, or have intended to incur
debts, beyond its ability to pay such debts as they mature.
7. EFFECT ON THE CREDIT AGREEMENT. Except as specifically provided
herein, the Credit Agreement shall remain in full force and effect, and is
hereby ratified, reaffirmed and confirmed. This Amendment shall be deemed to be
a Loan Document for all purposes.
15
8. COUNTERPARTS. This Amendment may be executed in any number of
separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile or
email transmission shall be deemed an original signature hereto.
9. DELIVERY OF LENDER ADDENDA. Each Credit Party executing this
Amendment shall do so by delivering to the Administrative Agent a Lender
Addendum, substantially in the form of Annex I attached hereto, duly executed by
such Credit Party.
10. LAW OF CONTRACT. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first written above.
BORROWER: SPECTRASITE COMMUNICATIONS, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President-Finance
and Treasurer
HOLDCO: SPECTRASITE, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President-Finance
and Treasurer
LEAD ARRANGERS: TD SECURITIES (USA) LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
JOINT BOOK RUNNERS: TD SECURITIES (USA) LLC
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Director
DEUTSCHE BANK SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Director
CO-ARRANGERS AND
CO-DOCUMENTATION AGENTS: DEUTSCHE BANK SECURITIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxxxx, Xx.
------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Director
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Xxxxxx Xxxx
------------------------------
Name: Xxxxxx Xxxx
Title: Senior Vice President
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
SYNDICATION AGENT: CITICORP N.A., INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS) LLC
By: /s/ Xxx Xxxxxxxx
------------------------------
Name: Xxx Xxxxxxxx
Title: Authorized Signatory
