SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 16,
1999, among SBA COMMUNICATIONS CORPORATION, a Florida corporation ("Holdings"),
--------
SBA TELECOMMUNICATIONS, INC., a Florida corporation (the "Borrower"), the
--------
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), XXXXXX BROTHERS INC., as advisor and
-------
book manager ("LBI"), XXXXXX BROTHERS INC., as the arranger (in such capacity,
---
the "Arranger"), GENERAL ELECTRIC CAPITAL CORPORATION, as syndication agent (in
--------
such capacity, the "Syndication Agent"), TORONTO DOMINION (TEXAS), INC., as
-----------------
documentation agent (in such capacity, the "Documentation Agent"), BARCLAYS BANK
-------------------
PLC (in such capacity, the "Co-Documentation Agent") and XXXXXX COMMERCIAL PAPER
----------------------
INC., as administrative agent (in such capacity, the "Administrative Agent").
--------------------
W I T N E S S E T H:
-------------------
WHEREAS, the Borrower is a party to the Amended and Restated Credit
Agreement, dated as of February 5, 1999 (the "Existing Credit Agreement"), among
-------------------------
Holdings, the Borrower, the lenders parties thereto, Xxxxxx Commercial Paper
Inc., as administrative agent, and others, pursuant to which such lenders have
agreed to extend, and have extended, credit to the Borrower; and
WHEREAS, the Borrower has requested certain amendments to the Existing
Credit Agreement (including an increase in the Total Revolving Credit
Commitments and the addition of a Tranche B Term Loan Facility), and the
Required Lenders and each Lender whose Revolving Credit Commitment is being
increased hereby have agreed to amend and restate the Existing Credit Agreement
as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree that on the Second
Amendment and Restatement Effective Date, the Existing Credit Agreement shall be
amended and restated in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
-------------
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Acceptable Tenant": any Person that (a) has a contract with the
-----------------
Borrower or any of its Subsidiaries to locate wireless transmission
antennae on a Tower and (b) either (i) is listed on Annex B or (ii) has
been approved in writing by the Required Lenders.
"Adjusted EBITDA": for any period, Consolidated EBITDA for such
---------------
period; provided, however, that for purposes of calculating Non-Tower
-------- -------
EBITDA, Mature Tower
2
EBITDA and Developmental Tower EBITDA for any period, Consolidated EBITDA
shall be adjusted by allocating sales and marketing and general and
administrative expenses (as such expenses are reflected in the financial
statements referred to in Section 4.1(b) on the date hereof) reflected in
Consolidated EBITDA as follows: (a) to Non-Tower EBITDA, 28% of such
expenses, (b) to Mature Tower EBITDA, 72% of such expenses, multiplied by
the ratio of the aggregate number of Mature Towers to the aggregate number
of Towers, and (c) to Developmental Tower EBITDA, 72% of such expenses,
multiplied by the ratio of the aggregate number of Developmental Towers to
the aggregate number of Towers.
"Adjustment Date": as defined in the Pricing Grid.
---------------
"Administrative Agent": as defined in the preamble hereto.
--------------------
"Affiliate": as to any Person, any other Person which, directly or
---------
indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct or
cause the direction of the management and policies of such Person, whether
by contract or otherwise.
"Agents": the collective reference to the Syndication Agent, the
------
Documentation Agent, the Co-Documentation Agent and the Administrative
Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
------------------
amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans and (ii)
amount of such Lender's Revolving Credit Commitment then in effect or, if
the Revolving Credit Commitments have been terminated, the amount of such
Lender's Revolving Extensions of Credit then outstanding.
"Aggregate Exposure Percentage" with respect to any Lender at any
-----------------------------
time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such
time.
"Agreement": this Second Amended and Restated Credit Agreement, as
---------
amended, supplemented or otherwise modified from time to time.
"Annualized Adjusted EBITDA": for any period, the sum of
--------------------------
Developmental Tower EBITDA, Mature Tower EBITDA and Non-Tower EBITDA for
such period.
3
"Applicable Margin": (a) for each Tranche A Term Loan and each
-----------------
Revolving Loan, the rate per annum determined pursuant to the Pricing Grid
and (b) for each Tranche B Loan, the rate per annum set forth under the
relevant column heading below:
Base Rate Eurodollar
Loans Loans
--------- ----------
2.50% 3.50%;
"Application": an application, in such form as the Issuing Lender may
-----------
specify from time to time, requesting the Issuing Lender to open a Letter
of Credit.
"Asset Coverage Test Amount": at any date of calculation thereof, the
--------------------------
sum of (a) the lesser of (i) $125,000 for each Tower which is a
Developmental Tower on such date of calculation and (ii) 55% of Tower Cost
with respect to such Tower, plus (b) the product of (i) the aggregate
Mature Tower EBITDA for the period of twelve consecutive calendar months
most recently ended prior to such date of calculation and (ii) six, plus
(c) the product of (i) the aggregate Non-Tower EBITDA for the period of
twelve consecutive calendar months most recently ended prior to such date
of calculation and (ii) four; provided, that in calculating the Asset
--------
Coverage Test Amount on any date, no amount may be attributed to the Mature
Tower EBITDA or Non-Tower EBITDA, as the case may be, attributable to
assets Disposed of prior to such date of calculation.
"Asset Sale": any Disposition of Property or series of related
----------
Dispositions of Property (excluding any such Disposition permitted by
clauses (b), (c) or (d) of Section 7.5) which yields gross proceeds to
Holdings, the Borrower or any of its Subsidiaries (valued at the initial
principal amount thereof in the case of non-cash proceeds consisting of
notes or other debt securities and valued at fair market value in the case
of other non-cash proceeds) in excess of $10,000.
"Assignee": as defined in Section 10.6(c).
--------
"Assignor": as defined in Section 10.6(c).
--------
"Available Revolving Credit Commitment": as to any Revolving Credit
-------------------------------------
Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Revolving Credit Commitment then in effect over (b) such Lender's
----
Revolving Extensions of Credit then outstanding.
"Base Rate": for any day, a rate per annum (rounded upwards, if
---------
necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day plus
1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest
----------
per annum publicly announced from time to time by the Reference Lender as
its prime or base rate in effect at its principal office in New York City
(the Prime Rate not
4
being intended to be the lowest rate of interest charged by the Reference
Lender in connection with extensions of credit to debtors); "Base CD Rate"
------------
shall mean the sum of (a) the product of (i) the Three-Month Secondary CD
Rate and (ii) a fraction, the numerator of which is one and the denominator
of which is one minus the C/D Reserve Percentage and (b) the C/D Assessment
Rate; and "Three-Month Secondary CD Rate" shall mean, for any day, the
-----------------------------
secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day,
the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board, be published in
Federal Reserve Statistical Release H.15(519) during the week following
such day), or, if such rate shall not be so reported on such day or such
next preceding Business Day, the average of the secondary market quotations
for three-month certificates of deposit of major money center banks in New
York City received at approximately 10:00 A.M., New York City time, on such
day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Reference Lender from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it. Any
change in the Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective as
of the opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of interest is
---------------
based upon the Base Rate.
"Benefitted Lender": as defined in Section 10.7.
-----------------
"Board": the Board of Governors of the Federal Reserve System of the
-----
United States (or any successor).
"Borrower": as defined in the preamble hereto.
--------
"Borrowing Date": any Business Day specified by the Borrower as a
--------------
date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Business Day": (i) for all purposes other than as covered by clause
------------
(ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in Dollar deposits in the interbank eurodollar
market.
"Capital Expenditures": for any period, with respect to any Person,
--------------------
the aggregate of all expenditures by such Person and its Subsidiaries for
the acquisition or leasing (pursuant to a capital lease) of fixed or
capital assets or additions to equipment (including replacements,
construction costs, capitalized repairs and improvements during such
5
period) which should be capitalized under GAAP on a consolidated balance
sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such
time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
-------------
other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
----------------
unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of six months or less from the
date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or any state
thereof having combined capital and surplus of not less than $500,000,000;
(c) commercial paper of an issuer rated at least A-2 by Standard & Poor's
Ratings Services ("S&P") or P-2 by Xxxxx'x Investors Service, Inc.
---
("Moody's"), or carrying an equivalent rating by a nationally recognized
---------
rating agency, if both of the two named rating agencies cease publishing
ratings of commercial paper issuers generally, and maturing within six
months from the date of acquisition; (d) repurchase obligations of any
Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth
or territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case
may be) are rated at least A by S&P or A by Moody's; (f) securities with
maturities of six months or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; or (g) shares
of money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition.
"C/D Assessment Rate": for any day as applied to any Base Rate Loan,
-------------------
the annual assessment rate in effect on such day that is payable by a
member of the Bank Insurance
6
Fund maintained by the Federal Deposit Insurance Corporation (the "FDIC")
----
classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of
12 C.F.R. (S) 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits at
offices of such institution in the United States.
"C/D Reserve Percentage": for any day as applied to any Base Rate
----------------------
Loan, that percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in Regulation D of the
Board as in effect from time to time) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Closing Date": the date on which the conditions precedent set forth
------------
in Section 5.1 were satisfied, which date occurred on February 5, 1999.
"Code": the Internal Revenue Code of 1986, as amended from time to
----
time.
"Collateral": all Property of the Loan Parties, now owned or
----------
hereafter acquired, upon which a Lien is purported to be created by any
Security Document.
"Commitment": as to any Lender, the sum of the Tranche A Term Loan
----------
Commitment, the Tranche B Term Loan Commitment and the Revolving Credit
Commitment of such Lender.
"Commitment Fee Rate": the rate per annum determined pursuant to the
-------------------
Pricing Grid.
"Commitment Increase Date": the date that is three Business Days
------------------------
after the Second Amendment and Restatement Effective Date.
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
----------------------
Responsible Officer substantially in the form of Exhibit B.
"Communications Act": the Communications Act of 1934, and any
------------------
similar or successor federal statute, and the rules and regulations of the
FCC thereunder, all as amended and as may be in effect from time to time.
"Confidential Information Memorandum": the Confidential Information
-----------------------------------
Memorandum dated November 1999 and furnished to the Lenders prior to the
Second Amendment and Restatement Effective Date.
7
"Consent": the Consent, substantially in the form of Exhibit M, to be
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executed and delivered by each Loan Party other than the Borrower on the
Second Amendment and Restatement Effective Date.
"Consolidated Current Assets": at any date, all amounts (other than
---------------------------
cash and Cash Equivalents) which would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on
a consolidated balance sheet of the Borrower and its Subsidiaries at such
date.
"Consolidated Current Liabilities": at any date, all amounts that
--------------------------------
would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet
of the Borrower and its Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of the Borrower and its Subsidiaries and
(b) without duplication of clause (a) above, all Indebtedness consisting of
Revolving Credit Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, Consolidated Net Income for
-------------------
such period plus, without duplication and to the extent reflected as a
----
charge in the statement of such Consolidated Net Income for such period,
the sum of (a) income tax expense, (b) Consolidated Interest Expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (c) depreciation and amortization
expense, (d) amortization of intangibles (including, but not limited to,
goodwill) and organization costs, (e) any extraordinary, unusual or non-
recurring expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net
Income for such period, losses on sales of assets outside of the ordinary
course of business) and (f) any other non-cash charges, and minus, to the
-----
extent included in the statement of such Consolidated Net Income for such
period, the sum of (a) interest income (except to the extent deducted in
determining Consolidated Interest Expense), (b) any extraordinary, unusual
or non-recurring income or gains (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net
Income for such period, gains on the sales of assets outside of the
ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis; provided that for purposes of
--------
calculating Consolidated EBITDA of the Borrower and its Subsidiaries for
any period, (i) the Consolidated EBITDA of any Mature Tower or Person
acquired by the Borrower or its Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the consummation of
--- -----
such acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period) if, with
respect to any acquisition of any Person, the consolidated balance sheet of
such acquired Person and its consolidated Subsidiaries as at the end of the
period preceding the acquisition of such Person and the related
consolidated statements of income and stockholders' equity and of cash
flows for the period in respect of which Consolidated EBITDA is to be
calculated (x) have been previously provided to the Administrative Agent
and the Lenders and (y) either (1) have been reported on without a
qualification arising out of the scope of the audit by independent
certified
8
public accountants of nationally recognized standing or (2) have been found
acceptable by the Administrative Agent and (ii) the Consolidated EBITDA of
any Person Disposed of by the Borrower or its Subsidiaries during such
period shall be excluded for such period (assuming the consummation of such
Disposition and the repayment of any Indebtedness in connection therewith
occurred on the first day of such period).
"Consolidated Fixed Charge Coverage Ratio": for any period, the
----------------------------------------
ratio of (a) the sum of (i) Consolidated EBITDA for such period, (ii) the
Net Cash Proceeds from issuances of Capital Stock or Indebtedness during
such period, (iii) the aggregate of the Available Revolving Credit
Commitments, as determined in accordance with this Agreement, as of the
date of the most recently ended fiscal quarter and (iv) without
duplication, cash of the Borrower and its Subsidiaries as of the date of
the most recently ended fiscal quarter to (b) Consolidated Fixed Charges
for such period.
"Consolidated Fixed Charges": for any period, the sum (without
--------------------------
duplication) of (a) Consolidated Interest Expense for such period, (b)
provision for cash income taxes made by the Borrower or any of its
Subsidiaries on a consolidated basis in respect of such period, (c)
scheduled payments made during such period on account of principal of
Indebtedness of the Borrower or any of its Subsidiaries (including
scheduled principal payments in respect of the Term Loans and scheduled
reductions of the Revolving Credit Commitments) and (d) Capital
Expenditures for such period.
"Consolidated Interest Expense": for any period, total cash interest
-----------------------------
expense (including that attributable to Capital Lease Obligations) of the
Borrower and its Subsidiaries for such period with respect to all
outstanding Indebtedness of the Borrower and its Subsidiaries (including,
without limitation, all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance financing
and net costs under Hedge Agreements in respect of interest rates to the
extent such net costs are allocable to such period in accordance with
GAAP).
"Consolidated Net Income": for any period, the consolidated net
-----------------------
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
--------
excluded (a) the income (or deficit) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries, (b) the income
(or deficit) of any Person (other than a Subsidiary of the Borrower) in
which the Borrower or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by the
Borrower or such Subsidiary in the form of dividends or similar
distributions and (c) the undistributed earnings of any Subsidiary of the
Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by
the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary; provided,
--------
that Consolidated Net Income shall include income from Excluded Entities
only to the extent that such income is actually received by the Borrower
and its Subsidiaries in cash.
9
"Consolidated Total Debt": at any date, the aggregate principal
-----------------------
amount of all Indebtedness of the Borrower and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
----------------------------
Consolidated Current Assets on such date over Consolidated Current
Liabilities on such date.
"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Control Investment Affiliate": as to any Person, any other Person
----------------------------
that (a) directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person and (b) is organized by such Person
primarily for the purpose of making equity or debt investments in one or
more companies. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, to direct or cause the direction
of the management and policies of such Person whether by contract or
otherwise.
"Default": any of the events specified in Section 8, whether or not
-------
any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Derivatives Counterparty": as defined in Section 7.6.
------------------------
"Developmental Tower": at any date of determination thereof, each
-------------------
Tower which (a) has been operational for twelve months or a shorter period
of time, (b) during such period has had, and continues to have on such date
of determination, at least one broadband Acceptable Tenant under a contract
having an original term of not less than five years, (c) has capacity for
at least two additional broadband tenants and at least two additional
narrowband tenants and (d) has not been designated by the Borrower by
written notice to the Administrative Agent, as a Mature Tower.
"Developmental Tower EBITDA": for any period of twelve consecutive
--------------------------
calendar months, the product of (a) Adjusted EBITDA derived from
Developmental Towers for the last three calendar months of such period
(whether or not a fiscal quarter) and (b) four.
"Disposition": with respect to any Property, any sale, lease, sale
-----------
and leaseback, assignment, conveyance, transfer or other disposition
thereof; and the terms "Dispose" and "Disposed of" shall have correlative
------- -----------
meanings.
"Dollars" and "$": dollars in lawful currency of the United States of
------- -
America.
"Domestic Subsidiary": any Subsidiary of the Borrower organized
-------------------
under the laws of any jurisdiction within the United States of America.
10
"Environmental Laws": any and all laws, rules, orders, regulations,
------------------
statutes, ordinances, guidelines, codes, decrees, or other legally
enforceable requirements (including, without limitation, common law) of any
international authority, foreign government, the United States, or any
state, local, municipal or other governmental authority having jurisdiction
over the Borrower, any Subsidiary of the Borrower or any Tower, regulating,
relating to or imposing liability or standards of conduct concerning
protection of the environment or of human health, or employee health and
safety, as has been, is now, or may at any time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses, approvals,
---------------------
registrations, notifications, exemptions and any other authorization
required under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such
day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) maintained by a
member bank of the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
--------------------
Period pertaining to a Eurodollar Loan, the rate per annum determined on
the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00 A.M., London
time, two Business Days prior to the beginning of such Interest Period. In
the event that such rate does not appear on Page 3750 of the Telerate
screen (or otherwise on such screen), the "Eurodollar Base Rate" for
--------------------
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as
may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is
offered Dollar deposits at or about 11:00 A.M., New York City time, two
Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day
of such Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which is
----------------
based upon the Eurodollar Rate.
11
"Eurodollar Rate": with respect to each day during each Interest
---------------
Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
-----------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
------------------
the then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Eurodollar
Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
----------------
provided that any requirement for the giving of notice, the lapse of time,
--------
or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the excess,
----------------
if any, of (a) the sum, without duplication, of (i) Consolidated Net Income
for such fiscal year, (ii) an amount equal to the amount of all non-cash
charges (including depreciation and amortization) deducted in arriving at
such Consolidated Net Income, (iii) decreases in Consolidated Working
Capital for such fiscal year, (iv) an amount equal to the aggregate net
non-cash loss on the Disposition of Property by the Borrower and its
Subsidiaries during such fiscal year (other than sales of inventory in the
ordinary course of business), to the extent deducted in arriving at such
Consolidated Net Income and (v) the net increase during such fiscal year
(if any) in deferred tax accounts of the Borrower over (b) the sum, without
----
duplication, of (i) an amount equal to the amount of all non-cash credits
included in arriving at such Consolidated Net Income, (ii) the aggregate
amount actually paid by the Borrower and its Subsidiaries in cash during
such fiscal year on account of Capital Expenditures (excluding the
principal amount of Indebtedness incurred in connection with such
expenditures and any such expenditures financed with the proceeds of any
Reinvestment Deferred Amount), (iii) the aggregate amount of all
prepayments of Revolving Credit Loans during such fiscal year to the extent
accompanying permanent optional reductions of the Revolving Credit
Commitments and all optional prepayments of the Term Loans during such
fiscal year, (iv) the aggregate amount of all regularly scheduled principal
payments of Funded Debt (including, without limitation, the Term Loans) of
the Borrower and its Subsidiaries made during such fiscal year (other than
in respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder), (v) increases in
Consolidated Working Capital for such fiscal year, (vi) an amount equal to
the aggregate net non-cash gain on the Disposition of Property by the
Borrower and its Subsidiaries during such fiscal year (other than sales of
inventory in the ordinary course of business), to the extent included in
arriving at such Consolidated Net Income, and (vii) the net decrease during
such fiscal year (if any) in deferred tax accounts of the Borrower.
"Excess Cash Flow Application Date": as defined in Section 2.10(c).
---------------------------------
12
"Excluded Entities": SBA Brazil and Metro Joint Venture, L.C. (or
-----------------
such other partnership, limited liability company or other entity formed by
and between SBA Towers New York, Inc. and Site Tech, Inc.)
"Excluded Foreign Subsidiaries": any Foreign Subsidiary in respect of
-----------------------------
which either (i) the pledge of all of the Capital Stock of such Subsidiary
as Collateral or (ii) the guaranteeing by such Subsidiary of the
Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower.
"Existing Credit Agreement": as defined in the Recitals.
-------------------------
"FAA": the Federal Aviation Administration, and any successor agency
---
of the United States Government exercising substantially equivalent powers.
"Facility": each of (a) the Tranche A Term Loan Commitments and the
--------
Tranche A Term Loans made thereunder (the "Tranche A Term Loan Facility"),
----------------------------
(b) the Tranche B Term Loan Commitments and the Tranche B Term Loans made
thereunder (the "Tranche B Term Loan Facility") and (c) the Revolving
----------------------------
Credit Commitments and the extensions of credit made thereunder (the
"Revolving Credit Facility").
--------------------------
"FCC": the Federal Communications Commission, and any successor
---
agency of the United States Government exercising substantially equivalent
powers.
"Federal Funds Effective Rate": for any day, the weighted average of
----------------------------
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Reference Lender from three federal funds brokers of recognized
standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
------------------
Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness of such Person of
-----------
the types described in clauses (a) through (e) of the definition of
"Indebtedness" in this Section.
"Funding Office": the office designated from time to time by the
--------------
Administrative Agent, by written notice to the Borrower and the Lenders, as
the Funding Office.
"GAAP": generally accepted accounting principles in the United
----
States of America as in effect from time to time, except that for purposes
of Section 7.1, GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements delivered pursuant to
Section 4.1(b).
13
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
----------------------------------
Agreement executed and delivered by Holdings, the Borrower and each
Subsidiary Guarantor on the Closing Date, a copy of which is attached as
Exhibit A, as the same may be amended, supplemented or otherwise modified
from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
-------------------- -------------------
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
-------------------
(the "primary obligor") in any manner, whether directly or indirectly,
---------------
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
--------
however, that the term Guarantee Obligation shall not include endorsements
-------
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Guarantors": the collective reference to Holdings and the Subsidiary
----------
Guarantors.
"Hedge Agreements": all interest rate swaps, caps or collar
----------------
agreements or similar arrangements entered into by the Borrower providing
for protection against fluctuations in interest rates or currency exchange
rates or the exchange of nominal interest obligations, either generally or
under specific contingencies.
14
"Indebtedness": of any Person at any date, without duplication, (a)
------------
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of Property or services (other
than trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments (other than performance bonds and
other obligations of a like nature incurred in the ordinary course of such
Person's business), (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to
Property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such Property), (e) all Capital Lease
Obligations of such Person, (f) all obligations of such Person, contingent
or otherwise, as an account party under acceptance, letter of credit or
similar facilities, (g) all obligations of such Person, contingent or
otherwise, to purchase, redeem, retire or otherwise acquire for value any
Capital Stock of such Person, (h) all Guarantee Obligations of such Person
in respect of obligations of the kind referred to in clauses (a) through
(g) above; (i) all obligations of the kind referred to in clauses (a)
through (h) above secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) any Lien
on Property (including, without limitation, accounts and contract rights)
owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation, (j) for the purposes of Section
8(e) only, all obligations of such Person in respect of Hedge Agreements
and (k) the liquidation value of any preferred Capital Stock of such Person
or its Subsidiaries held by any Person other than such Person and its
Wholly Owned Subsidiaries.
"Indemnified Liabilities": as defined in Section 10.5.
-----------------------
"Indemnitee": as defined in Section 10.5.
----------
"Initial Tower Report": the report of Xxxxxx Xxxxxxxx LLP,
--------------------
independent certified public accountants of Holdings, dated November 30,
1998 stating that the procedures that such accountants used to verify
information with respect to leases in existence for Developmental Towers
and Mature Towers and which report (i) demonstrated that Total Tower
Revenue for the eleven months ended November 30, 1998 was at least
$10,500,000 and that total Tower gross profit for such period was at least
$4,000,000, (ii) confirmed that on the last day of such period there were
at least 418 Towers, (iii) confirmed the total number of tenants on the
Towers on the last day of such period and (iv) confirmed such other
information as reasonably requested by the Administrative Agent.
"Initial Tower Report Supplement": the report of Xxxxxx Xxxxxxxx LLP
-------------------------------
supplementing the Initial Tower Report which(a) verified cash collections
of the Borrower in respect of a statistical sample of Towers, and describe
the methods and procedures used for such verification and (b) verified that
Towers classified by the Borrower as Developmental Towers met the criteria
specified in the definition of
15
"Developmental Towers" in this Section 1.1 at the time such Towers were so
classified by the Borrower.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Intellectual Property": the collective reference to all rights,
---------------------
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to xxx at law or in equity for any infringement
or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day
---------------------
of each March, June, September and December to occur while such Base Rate
Loan is outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last
day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three months,
or a whole multiple thereof, after the first day of such Interest Period
and the last day of such Interest Period and (d) as to any Loan (other than
any Revolving Credit Loan that is a Base Rate Loan), the date of any
repayment or prepayment made in respect thereof, including without
limitation, the Prepayment Date.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
---------------
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six
months thereafter, as selected by the Borrower in its notice of borrowing
or notice of conversion, as the case may be, given with respect thereto;
and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the Borrower by
irrevocable notice to the Administrative Agent not less than three Business
Days prior to the last day of the then current Interest Period with respect
thereto; provided that, all of the foregoing provisions relating to
--------
Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(ii) any Interest Period in respect of Revolving Credit Loans
that would otherwise extend beyond the Revolving Credit Termination
Date shall end on the
16
Revolving Credit Termination Date, and any Interest Period in respect
of Tranche A Term Loans or Tranche B Term Loans that would otherwise
extend beyond the applicable final maturity date therefor shall end on
such final maturity date;
(iii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to require
a payment or prepayment of any Eurodollar Loan during an Interest
Period for such Loan.
"Investments": as defined in Section 7.8.
-----------
"Issuing Lender": Toronto Dominion (Texas), Inc., in its capacity as
--------------
issuer of any Letter of Credit.
"LBI": as defined in the preamble thereto.
---
"L/C Commitment": $25,000,000.
--------------
"L/C Fee Payment Date": the last day of each March, June, September
--------------------
and December and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
---------------
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": the collective reference to all the Revolving
----------------
Credit Lenders other than the Issuing Lender.
"Lender Addendum": with respect to any Lender which became a party
---------------
hereto on the Closing Date, a Lender Addendum, substantially in the form of
Exhibit I, executed and delivered by such Lender on the Closing Date as
provided in Section 10.17.
"Lenders": as defined in the preamble hereto.
-------
"Letters of Credit": as defined in Section 3.1(a).
-----------------
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
17
agreement and any capital lease having substantially the same economic
effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
----
"Loan Documents": this Agreement, the Security Documents, the
--------------
Applications and the Notes.
"Loan Parties": Holdings, the Borrower and each Subsidiary of the
------------
Borrower which is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
-------------------------
holders of more than 50% of the aggregate unpaid principal amount of the
Tranche A Term Loans, the Tranche B Term Loans or the Total Revolving
Extensions of Credit, as the case may be, outstanding under such Facility
(or, in the case of the Revolving Credit Facility, prior to any termination
of the Revolving Credit Commitments, the holders of more than 50% of the
Total Revolving Credit Commitments).
"Majority Revolving Credit Facility Lenders": the Majority Facility
------------------------------------------
Lenders in respect of the Revolving Credit Facility.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, assets, property, condition (financial or otherwise) or prospects
of Holdings, the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Agents or the Lenders hereunder
or thereunder.
"Material Environmental Amount": an amount or amounts payable by the
-----------------------------
Borrower and/or any of its Subsidiaries, in the aggregate in excess of
$1,000,000, for: costs to comply with any Environmental Law; costs of any
investigation, and any remediation, of any Material of Environmental
Concern; and compensatory damages (including, without limitation damages to
natural resources), punitive damages, fines, and penalties pursuant to any
Environmental Law; provided that any amounts expended for environmental
--------
site assessments pursuant to customary due diligence conducted in
connection with the acquisition of towers and/or tower sites shall be
excluded from the calculation of any Material Environmental Amount.
"Materials of Environmental Concern": any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactivity, and any other substances or forces
of any kind, whether or not any such substance or force is defined as
hazardous or toxic under any Environmental Law, that is regulated pursuant
to or could give rise to liability under any Environmental Law.
"Mature Tower": any Tower other than a Developmental Tower.
------------
18
"Mature Tower EBITDA": for any period of twelve consecutive calendar
-------------------
months, the product of (a) Adjusted EBITDA derived for the last three
calendar months of such period (whether or not a fiscal quarter) from
Mature Towers, from the Borrower's lease/sublease business (excluding
revenue derived from Developmental Towers) and the Borrower's businesses of
leasing antennae space on buildings and managing towers and antennae space
on buildings owned by others and (b) four.
"Mortgaged Properties": the real properties upon which the
--------------------
Administrative Agent for the benefit of the Lenders has been or shall be
granted a Lien pursuant to the Mortgages.
"Mortgage Requirement": the requirement that, within 60 days after
--------------------
the end of each fiscal quarter there shall have been executed, and
delivered to the appropriate recording offices, Mortgages (i) covering
Towers which during such fiscal quarter most recently ended contributed at
least 80% of Total Tower Revenue (excluding revenue from the Borrower's
lease/sublease business) and (ii) Developmental Towers on such date which
constitute at least 80% in number of all Developmental Towers on such date
(it being understood that the Borrower will execute and deliver Mortgages
within 60 days of the Second Amendment and Restatement Effective Date based
upon Total Tower Revenue and number of Developmental Towers as of September
30, 1999); all of the foregoing to be accomplished pursuant to the
procedures set forth in Annex C).
"Mortgages": each of the mortgages and deeds of trust made by any
---------
Loan Party in favor of, or for the benefit of, the Administrative Agent for
the benefit of the Lenders, substantially in the form of Exhibit D (with
such changes thereto as shall be advisable under the law of the
jurisdiction of in which such mortgage or deed of trust is to be recorded),
as the same may be amended, supplemented or otherwise modified from time to
time.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
-----------------
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied
to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset which is the subject of such Asset Sale or Recovery
Event (other than any Lien pursuant to a Security Document) and other
customary fees and expenses (including commissions, transfer taxes and
other customary expenses) actually incurred in connection therewith and net
of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any
tax sharing arrangements) and (b) in connection with any issuance or sale
of equity securities or debt securities or
19
instruments or the incurrence of loans, the cash proceeds received from
such issuance or incurrence, net of attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and other
customary fees and expenses (including commissions, transfer taxes and
other customary expenses) actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.18(a).
------------------
"Non-Tower EBITDA": for any period of twelve consecutive calendar
----------------
months, the difference of (i) Adjusted EBITDA for such period minus (ii)
the sum of (a) Developmental Tower EBITDA for such period plus (b) Mature
Tower EBITDA for such period.
"Non-U.S. Lender": as defined in Section 2.18(d).
---------------
"Notes": the collective reference to any promissory note evidencing
-----
Loans.
"Obligations": the unpaid principal of and interest on (including,
-----------
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not
a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of
Specified Hedge Agreements, any Affiliate of any Lender), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, any other Loan Document, the Letters of Credit, any
Specified Hedge Agreement or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to
be paid by the Borrower pursuant hereto) or otherwise.
"Other Taxes": any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant": as defined in Section 10.6(b).
-----------
"Payment Office": the office designated from time to time by the
--------------
Administrative Agent, by written notice to the Borrower, as the Payment
Office.
"PBGC": the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA (or any successor).
20
"Person": an individual, partnership, corporation, limited liability
------
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan that is
----
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Preferred Stock": the collective reference to the Series A Preferred
---------------
Stock, the Series B Preferred Stock, the Series C Preferred Stock and the
Series D Preferred Stock.
"Prepayment Date": as defined in Section 2.16(e).
---------------
"Pricing Grid": the pricing grid attached hereto as Annex A.
------------
"Pricing Ratio": (a) on the last day of any fiscal quarter ending on
-------------
or before the Transition Date, the ratio of (i) Consolidated Total Debt on
such last day to (ii) Annualized Adjusted EBITDA for the period of twelve
consecutive calendar months ended on such day, and (b) on the last day of
any fiscal quarter ending after the Transition Date, the ratio of (i)
Consolidated Total Debt on such last day to (ii) Consolidated EBITDA for
the period of four consecutive fiscal quarters ended on such day.
"Pro Forma Balance Sheet": as defined in Section 4.1(a).
-----------------------
"Pro Forma Consolidated Debt Service Coverage Ratio": for any
--------------------------------------------------
period, the ratio of (a) Consolidated EBITDA for such period to (b) Pro
Forma Consolidated Debt Service for such period.
"Pro Forma Consolidated Debt Service": for any period, the sum
-----------------------------------
(without duplication) of (a) Pro Forma Consolidated Interest Expense plus
(b) scheduled payments to be made during the next succeeding four fiscal
quarters of the Borrower and its Subsidiaries on account of principal of
Indebtedness of the Borrower or any of its Subsidiaries (including
scheduled principal payments in respect of the Term Loans and scheduled
reductions of the Revolving Credit Commitments).
"Pro Forma Consolidated Interest Expense": for any period, total cash
---------------------------------------
interest expense of the Borrower and its Subsidiaries for the next
succeeding four fiscal quarters with respect to all outstanding
Indebtedness of the Borrower and its Subsidiaries (including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing and net
costs under Hedge Agreements in respect of interest rates to the extent
such net costs are allocable to such period in accordance with GAAP).
"Projections": as defined in Section 6.2(c).
-----------
21
"Property": any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Recovery Event": any settlement of or payment in respect of any
--------------
property or casualty insurance claim or any condemnation proceeding
relating to any asset of Holdings, the Borrower or any of its Subsidiaries.
"Reference Lender": Deutsche Bank, New York Office.
----------------
"Register": as defined in Section 10.6(d).
--------
"Regulation U": Regulation U of the Board as in effect from time to
------------
time.
"Reimbursement Obligation": the obligation of the Borrower to
------------------------
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
----------------------------
Event, the aggregate Net Cash Proceeds received by Holdings, the Borrower
or any of its Subsidiaries in connection therewith that are not applied to
prepay the Term Loans or reduce the Revolving Credit Commitments pursuant
to Section 2.10(b) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
------------------
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
-------------------
Officer stating that no Default or Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of the
Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets
useful in its business or make capitalized repairs and improvements with
respect to such assets.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
------------------------------
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
----------------------------
Event, the earlier of (a) the date occurring six months after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to, acquire assets useful
in the Borrower's business with all or any portion of the relevant
Reinvestment Deferred Amount.
22
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
----------------
ERISA, other than those events as to which the 30 day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg. (S) 4043.
"Required Lenders": at any time, the holders of more than 50% of the
----------------
sum of (a) the aggregate unpaid principal amount of the Term Loans then
outstanding and (b) the Total Revolving Credit Commitments then in effect
or, if the Revolving Credit Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
---------------------------
respect of each Facility.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Responsible Officer": the chief executive officer, president or
-------------------
chief financial officer of the Borrower, but in any event, with respect to
financial matters, the chief financial officer of the Borrower.
"Restricted Payments": as defined in Section 7.6.
-------------------
"Revolving Credit Commitment": as to any Lender, the obligation of
---------------------------
such Lender, if any, to make Revolving Credit Loans and participate in
Letters of Credit, in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading "Revolving Credit Commitment"
opposite such Lender's name (a) in the case of each Lender that became a
Revolving Credit Lender on the Closing Date, on Schedule 1 to the Lender
Addendum delivered by such Lender on the Closing Date (as such amount may
be changed pursuant to a Second Lender Addendum executed by such Lender on
the Second Amendment and Restatement Effective Date), (b) in the case of
each Lender that has become or shall become a Revolving Credit Lender
pursuant to an Assignment and Acceptance, on Schedule 1 to such Assignment
and Acceptance (as such amount may be changed pursuant to a Second Lender
Addendum executed by such Lender on the Second Amendment and Restatement
Effective Date), and (c) in the case of each Lender that becomes a
Revolving Credit Lender on the Second Amendment and Restatement Effective
Date, and each Revolving Credit Lender whose Revolving Credit Commitment is
increased on the Commitment Increase Date, on Schedule 1 to the Second
Lender Addendum executed and delivered by such Lender on the Second
Amendment and Restatement Effective Date (which commitment or commitment
increase, as the case may
23
be, shall become available on the Commitment Increase Date), in each case,
as the same may be changed from time to time pursuant to the terms hereof.
The aggregate amount of the Total Revolving Credit Commitments as of the
Commitment Increase Date will be $225,000,000.00.
"Revolving Credit Commitment Period": the period from and including
----------------------------------
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Lender": each Lender that has a Revolving Credit
-----------------------
Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
----------------------
"Revolving Credit Percentage": as to any Revolving Credit Lender at
---------------------------
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the Total Revolving Credit Commitments (or, at any time
after the Revolving Credit Commitments shall have expired or terminated,
the percentage which the aggregate amount of such Lender's Revolving
Extensions of Credit then outstanding constitutes of the aggregate amount
of the Revolving Extensions of Credit then outstanding).
"Revolving Credit Termination Date": December 31, 2004.
---------------------------------
"Revolving Extensions of Credit": as to any Revolving Credit Lender
------------------------------
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding
and (b) such Lender's Revolving Credit Percentage of the L/C Obligations
then outstanding.
"SBA Brazil": SBA Telecommunicacoes do Brasil, LTDA, a company
----------
organized under the laws of Brazil.
"SEC": the Securities and Exchange Commission (or successors
---
thereto or an analogous Governmental Authority).
"Second Amendment and Restatement Effective Date": the date on which
-----------------------------------------------
each of the conditions precedent specified in Section 5.3 shall have been
satisfied.
"Second Lender Addendum": each Second Lender Addendum, substantially
----------------------
in the form of Exhibit L, to be executed on the Second Amendment and
Restatement Effective Date by (a) each Lender that becomes a Revolving
Credit Lender on the Second Amendment and Restatement Effective Date, (b)
each Lender whose Revolving Credit Commitment is increased on the
Commitment Increase Date and (c) each additional Lender, if any, required
to constitute the Required Lenders.
"Security Documents": the collective reference to the Guarantee and
------------------
Collateral Agreement, the Mortgages and all other security documents
hereafter delivered to the
24
Administrative Agent granting a Lien on any Property of any Person to
secure the obligations and liabilities of any Loan Party under any Loan
Document.
"Senior Discount Notes": the 12% Senior Discount Notes of Holdings
---------------------
due 2008 in the initial aggregate face amount of $269,000,000.
"Senior Discount Notes Indenture": the Indenture dated as of March 2,
-------------------------------
1998, as amended by the Senior Discount Notes Indenture Amendment, between
Holdings and State Street Bank and Trust Company, as trustee, together with
all instruments and other agreements entered into by Holdings in connection
therewith, as in effect on the date hereof.
"Senior Discount Notes Indenture Amendment": the Amendment, dated as
-----------------------------------------
of October 28, 1999, between Holdings and State Street Bank and Trust
Company, as trustee.
"Series A Preferred Stock": the 4% Series A Convertible Preferred
------------------------
Stock, par value $0.01 per share, of Holdings.
"Series B Preferred Stock": the 4% Series B Redeemable Preferred
------------------------
Stock, par value $0.01 per share, of Holdings issuable upon conversion of
the Series A Preferred Stock.
"Series C Preferred Stock": the 4% Series C Convertible Preferred
------------------------
Stock, par value $0.01 per share, of Holdings.
"Series D Preferred Stock": the 4% Series D Redeemable Preferred
------------------------
Stock, par value $0.01 per share, of Holdings issuable upon conversion of
the Series C Preferred Stock.
"Single Employer Plan": any Plan that is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, as of any date of
-------
determination, (a) the amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and
state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such
date, be greater than the amount that will be required to pay the liability
of such Person on its debts as such debts become absolute and matured, (c)
such Person will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business, and (d) such Person will be
able to pay its debts as they mature. For purposes of this definition, (i)
"debt" means liability on a "claim", and (ii) "claim" means any (x) right
to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed,
25
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not
such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
"Specified Hedge Agreement": any Hedge Agreement (a) entered into by
-------------------------
(i) the Borrower or any of its Subsidiaries and (ii) any Lender or any
Affiliate thereof, as counterparty and (b) which has been designated by
such Lender and the Borrower, by notice to the Administrative Agent and the
Syndication Agent, as a Specified Hedge Agreement.
"Specified New Equity Securities": common or preferred stock of
-------------------------------
Holdings issued and sold within six months after the Second Amendment and
Restatement Effective Date; provided that, in the case of preferred stock,
--------
such preferred stock shall not provide for the payment of any cash
dividends and shall not be mandatorily redeemable prior to the date which
is one year after the final maturity date of the Tranche B Term Loans.
"Subsidiary": as to any Person, a corporation, partnership, limited
----------
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such Person (it
being understood that an Excluded Entity shall not be a Subsidiary).
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Subsidiary Guarantor": each Subsidiary of Holdings other than the
--------------------
Borrower and any Excluded Foreign Subsidiary.
"Term Loans": the collective reference to Tranche A Term Loans and
----------
Tranche B Term Loans.
"Term Loan Commitments": the collective reference to the Tranche A
---------------------
Term Loan Commitments and the Tranche B Term Loan Commitments.
"Term Loan Lenders": the collective reference to the Tranche A Term
-----------------
Loan Lenders and the Tranche B Term Loan Lenders.
"Total Capitalization": as at any date, the sum of (i) shareholder's
--------------------
equity, (ii) Consolidated Total Debt of the Borrower and its Subsidiaries
and (iii) 90% of all accumulated depreciation expense, in each case, as
reflected in a consolidated balance
26
sheet of the Borrower and its Subsidiaries as at such date prepared in
accordance with GAAP.
"Total Revolving Credit Commitments": at any time, the aggregate
----------------------------------
amount of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
------------------------------------
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time.
"Total Tower Revenue": for any period, the Borrower's revenue from
-------------------
all Towers for such period, plus the Borrower's revenue for such period
from its lease/sublease business and its business of leasing or managing
antennae space on buildings, Towers or other structures.
"Tower": any wireless transmission tower, and related assets that are
-----
located on the site of such wireless transmission tower, owned by the
Borrower or any of its Subsidiaries or leased by the Borrower or any of its
Subsidiaries pursuant to a lease required to be classified and accounted
for as a capital lease on a balance sheet of the Borrower and its
Subsidiaries under GAAP.
"Tower Company": a corporation or any other entity engaged primarily
-------------
in the business of owning, managing, leasing and/or operating towers and
leasing space thereon to tenants.
"Tower Cost": with respect to any Tower, the aggregate cost of
----------
construction thereof, plus the aggregate cost of all zoning and other
regulatory approvals required for the construction and/or operation of such
Tower, plus, without duplication, the cost of Capital Expenditures with
respect to such Tower.
"Tranche A Term Loan": as defined in Section 2.1.
-------------------
"Tranche A Term Loan Commitment": as to any Tranche A Term Loan
------------------------------
Lender, the obligation of such Lender, if any, to make a Tranche A Term
Loan to the Borrower hereunder in a principal amount not to exceed the
amount set forth under the heading "Term Loan Commitment" opposite such
Lender's name on Schedule 1 to the Lender Addendum delivered by such
Lender, or, as the case may be, in the Assignment and Acceptance pursuant
to which such Lender became a party hereto, as the same may be changed from
time to time pursuant to the terms hereof. The original aggregate amount of
the Tranche A Term Loan Commitments is $25,000,000.
"Tranche A Term Loan Lender": each Lender that has a Tranche A Term
--------------------------
Loan Commitment or is the holder of a Tranche A Term Loan.
27
"Tranche A Term Loan Percentage": as to any Tranche A Term Loan
------------------------------
Lender at any time, the percentage which such Lender's Tranche A Term Loan
Commitment then constitutes of the aggregate Tranche A Term Loan
Commitments (or, at any time after the Closing Date, the percentage which
the aggregate principal amount of such Lender's Tranche A Term Loans then
outstanding constitutes of the aggregate principal amount of the Tranche A
Term Loans then outstanding).
"Tranche B Term Loan": as defined in Section 2.1.
-------------------
"Tranche B Term Loan Commitment": as to any Tranche B Term Loan
------------------------------
Lender, the obligation of such Lender, if any, to make a Tranche B Term
Loan to the Borrower hereunder in a principal amount not to exceed the
amount set forth under the heading "Tranche B Term Loan Commitment"
opposite such Lender's name on Schedule 1 to the Second Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same
may be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Tranche B Term Loan Commitments is $50,000,000.
"Tranche B Term Loan Lender": each Lender that has a Tranche B Term
--------------------------
Loan Commitment or is the holder of a Tranche B Term Loan.
"Tranche B Term Loan Percentage": as to any Tranche B Term Loan
------------------------------
Lender at any time, the percentage which such Lender's Tranche B Term Loan
Commitment then constitutes of the aggregate Tranche B Term Loan
Commitments (or, at any time after the Second Amendment and Effective Date,
the percentage which the aggregate principal amount of such Lender's
Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of the Tranche B Term Loans then outstanding).
"Transferee": as defined in Section 10.14.
----------
"Transition Date": January 1, 2002.
---------------
"Type": as to any Loan, its nature as a Base Rate Loan or a
----
Eurodollar Loan.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
-----------------------
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that
---------------------------------
is a Wholly Owned Subsidiary of Holdings.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
28
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to Holdings, the Borrower and its Subsidiaries not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Each reference to the "Credit Agreement" in any Loan Document
shall be deemed to be a reference to this Second Amended and Restated Credit
Agreement.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. The entities which were Tranche A Term
---------------------
Loan Lenders on the Closing Date made term loans ("Tranche A Term Loans") to the
--------------------
Borrower on the Closing Date in an aggregate principal amount equal to
$25,000,000, and the Tranche A Term Loans will continue to be outstanding
hereunder from and after the Second Amendment and Restatement Effective Date.
Subject to the terms and conditions hereof, each Tranche B Term Loan Lender
severally agrees to make a term loan (a "Tranche B Term Loan") to the Borrower
-------------------
on the Second Amendment and Restatement Effective Date in an amount not to
exceed the lesser of (a) the amount of the Tranche B Term Loan Commitment of
such Lender and (b) such Tranche B Term Loan Lender's Tranche B Loan Percentage
of the difference of (i) the Asset Coverage Test Amount less (ii) the sum of (A)
the Total Revolving Extension of Credit on the Second Amendment and Restatement
Effective Date plus (B) the aggregate outstanding principal amount of the
Tranche A Term Loans. The Term Loans may from time to time be Eurodollar Loans
or Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.11.
2.2 Procedure for Tranche B Term Loan Borrowing. The Borrower shall
-------------------------------------------
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, one
Business Day prior to the anticipated Second Amendment and Restatement Effective
Date) requesting that the Tranche B Term Loan Lenders make the Tranche B Term
Loans on the Second Amendment and Restatement Effective Date and specifying the
amount to be borrowed. The Tranche B Term Loans made on the Second Amendment and
Restatement Effective Date shall initially be Base Rate Loans, and no Tranche B
Term Loan may be converted into or continued as a Eurodollar Loan having an
Interest Period in excess of one month prior to the date which is 60 days after
the Second Amendment and Restatement Effective Date. Upon receipt of such notice
the Administrative
29
Agent shall promptly notify each Tranche B Term Loan Lender thereof. Not later
than 12:00 Noon, New York City time, on the Second Amendment and Restatement
Effective Date each Tranche B Term Loan Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the Tranche B Term Loan or Tranche B Term Loans to be made by
such Lender. The Administrative Agent shall make available to the Borrower the
aggregate of the amounts made available to the Administrative Agent by the
Tranche B Term Loan Lenders in like funds.
2.3 Repayment of Term Loans. (a) The Tranche A Term Loan of each
-----------------------
Tranche A Term Loan Lender shall mature in consecutive quarterly installments,
commencing on March 31, 2001, each of which shall be in an amount equal to such
Lender's Tranche A Term Loan Percentage multiplied by the amount set forth below
opposite such installment:
Quarterly Installment Principal Amount
--------------------- ----------------
March 31, 2001 $ 625,000
June 30, 2001 $ 625,000
September 30, 2001 $ 625,000
December 31, 2001 $ 625,000
March 31, 2002 $ 625,000
June 30, 2002 $ 625,000
September 30, 2002 $ 625,000
December 31, 2002 $ 625,000
March 31, 2003 $1,875,000
June 30, 2003 $1,875,000
September 30, 2003 $1,875,000
December 30, 2003 $1,875,000
March 31, 2004 $3,125,000
June 30, 2004 $3,125,000
September 30, 2004 $3,125,000
December 31, 2004 $3,125,000
(b) The Tranche B Term Loan of each Tranche B Term Loan Lender shall
mature in consecutive quarterly installments, commencing on March 31, 2002, each
of which shall be in an amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
Quarterly Installment Principal Amount
--------------------- ----------------
March 31, 2002 $ 125,000
June 30, 2002 $ 125,000
September 30, 2002 $ 125,000
December 31, 2002 $ 125,000
March 31, 2003 $ 125,000
June 30, 2003 $ 125,000
September 30, 2003 $ 125,000
30
Quarterly Installment Principal Amount
--------------------- ----------------
December 30, 2003 $ 125,000
March 31, 2004 $ 125,000
June 30, 2004 $ 125,000
September 30, 2004 $ 125,000
December 31, 2004 $ 125,000
March 31, 2005 $12,125,000
June 30, 2005 $12,125,000
September 30, 2005 $12,125,000
December 31, 2005 $12,125,000
2.4 Revolving Credit Commitments. (a) Subject to the terms and
----------------------------
conditions hereof, each Revolving Credit Lender severally agrees to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
----------------------
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding which, when added to such Lender's Revolving
Credit Percentage of the L/C Obligations then outstanding, does not exceed the
lesser of (i) the amount of such Lender's Revolving Credit Commitment and (ii)
prior to the Transition Date, the product of (A) such Lender's Revolving Credit
Percentage and (B) the difference of (x) the Asset Coverage Test Amount, as most
recently calculated prior to the date of such Revolving Credit Loans pursuant to
Section 6.2(h), less (y) the aggregate outstanding principal amount of the Term
Loans. During the Revolving Credit Commitment Period the Borrower may use the
Revolving Credit Commitments by borrowing, prepaying the Revolving Credit Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.5 and 2.11, provided
--------
that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Revolving Credit Termination Date.
(b) Revolving Credit Loans made under (and as defined in) the
Existing Credit Agreement prior to the Second Amendment and Restatement
Effective Date and outstanding on such date shall constitute Revolving Credit
Loans hereunder.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
----------------------------------------
borrow under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall give the
--------
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 12:00 Noon, New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(b) one Business Day prior to the requested Borrowing Date, in the case of Base
Rate Loans), specifying (i) the amount and Type of Revolving Credit Loans to be
borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar
Loans, the length of the initial Interest Period therefor. Each borrowing under
the Revolving Credit Commitments shall be in an amount equal to (x) in the case
of Base Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then
aggregate Available Revolving Credit Commitments are less than
31
$1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$2,500,000 or a whole multiple of $500,000 in excess thereof. Upon receipt of
any such notice from the Borrower, the Administrative Agent shall promptly
notify each Revolving Credit Lender thereof. Each Revolving Credit Lender will
make the amount of its pro rata share of each borrowing available to the
--- ----
Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. The
Administrative Agent shall make available to the Borrower the aggregate of the
amounts made available to the Administrative Agent by the Revolving Credit
Lenders in like funds as received by the Administrative Agent.
2.6 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
------------------------------------
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Revolving Credit Lender or Term Loan Lender, as the case may be,
the then unpaid principal amount of each Revolving Credit Loan of such Revolving
Credit Lender on the Revolving Credit Termination Date (or such earlier date on
which the Loans become due and payable pursuant to Section 8) and the principal
amount of each Term Loan of such Term Loan Lender in installments according to
the applicable amortization schedule set forth in Section 2.3. The Borrower
hereby further agrees to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 2.13.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c) The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 10.6(d), and a subaccount therein for
each Lender, in which shall be recorded the amount of each Loan made hereunder
and any Note evidencing such Loan, the Type thereof and each Interest Period
applicable thereto, the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder and both
the amount of any sum received by the Administrative Agent hereunder from the
Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.6(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Borrower therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing any Term Loans or Revolving Credit
Loans of such Lender, substantially in
32
in the forms of Exhibit G-1 or G-2, respectively, with appropriate insertions as
to date and principal amount.
2.7 Commitment Fees, etc. The Borrower agrees to pay to the
---------------------
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the Closing Date to the last
day of the Revolving Credit Commitment Period, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof; provided that on and after the Second Amendment
--------
and Restatement Effective Date, such commitment fee shall be based on the
Available Revolving Credit Commitment of such Lender as of the Commitment
Increase Date.
(b) The Borrower agrees to pay to LBI the fees in the amounts and on
the dates previously agreed to in writing by the Borrower and LBI.
(c) The Borrower agrees to pay to the Administrative Agent the fees
in the amounts and on the dates from time to time agreed to in writing by the
Borrower and the Administrative Agent.
2.8 Optional Termination or Reduction of Revolving Credit
-----------------------------------------------------
Commitments; Scheduled Reductions of Revolving Credit Commitments. (a) The
-----------------------------------------------------------------
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the amount of the Revolving Credit Commitments; provided
--------
that no such termination or reduction of Revolving Credit Commitments shall be
permitted if, after giving effect thereto and to any prepayments of the
Revolving Credit Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Credit Commitments. Any
such reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Credit Commitments then in
effect.
(b) The Revolving Credit Commitments shall be reduced automatically
in quarterly installments, commencing on March 31, 2001, by the percentage of
the Total Revolving Credit Commitments set forth below opposite such period:
Amount of Reduction of
Total Revolving
Quarterly Installment Credit Commitments
--------------------- ------------------
March 31, 2001 2.5%
June 30, 2001 2.5%
September 30, 2001 2.5%
December 31, 2001 2.5%
March 31, 2002 5.0%
June 30, 2002 5.0%
33
Amount of Reduction of
Total Revolving
Quarterly Installment Credit Commitments
--------------------- ------------------
September 30, 2002 5.0%
December 31, 2002 5.0%
March 31, 2003 7.5%
June 30, 2003 7.5%
September 30, 2003 7.5%
December 31, 2003 7.5%
March 31, 2004 10.0%
June 30, 2004 10.0%
September 30, 2004 10.0%
December 31, 2004 10.0%
(c) Any optional, scheduled or mandatory reduction of the Revolving
Credit Commitments pursuant to Section 2.8 or 2.10 shall be accompanied by
prepayment of the Revolving Credit Loans to the extent, if any, that the Total
Revolving Extensions of Credit exceed the amount of the Total Revolving Credit
Commitments as so reduced; and until the Transition Date, if any Asset Coverage
Test Certificate delivered pursuant to Section 6.2(h) shows that, as of the date
thereof, the Total Revolving Extensions of Credit, together with the aggregate
principal amount of outstanding Term Loans, exceeded the Asset Coverage Test
Amount, the Borrower shall prepay Revolving Credit Loans (or, if insufficient
Revolving Credit Loans are then outstanding, the Term Loans to the extent of
such insufficiency) on the date of delivery of such Asset Coverage Test
Certificate, to the extent, if any, that the Total Revolving Extensions of
Credit, together with the aggregate principal amount of outstanding Term Loans,
exceed the Asset Coverage Test Amount; provided that, in each case, if the
--------
aggregate principal amount of Revolving Credit Loans (in the case of clause (i))
or Loans (in the case of clause (ii)) then outstanding is less than the amount
of either such excess (because L/C Obligations constitute a portion thereof),
the Borrower shall, to the extent of the balance of such excess, replace
outstanding Letters of Credit and/or deposit an amount in cash in a cash
collateral account established with the Administrative Agent for the benefit of
the Lenders on terms and conditions reasonably satisfactory to the
Administrative Agent. Each prepayment of Eurodollar Loans shall be accompanied
by accrued interest to the date of such prepayment on the amount prepaid.
2.9 Optional Prepayments. The Borrower may at any time and from time
--------------------
to time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Administrative Agent at least three Business
Days prior thereto in the case of Eurodollar Loans and at least one Business Day
prior thereto in the case of Base Rate Loans, which notice shall specify the
date and amount of prepayment and whether the prepayment is of Eurodollar Loans
or Base Rate Loans; provided, that if a Eurodollar Loan is prepaid on any day
--------
other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.19. Upon receipt of any
such notice the Administrative
34
Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date
specified therein, together with (except in the case of Revolving Credit Loans
that are Base Rate Loans) accrued interest to such date on the amount prepaid.
Optional partial prepayments of Term Loans and Revolving Credit Loans shall be
in an aggregate principal amount of $1,000,000 or a whole multiple thereof.
2.10 Mandatory Prepayments and Commitments Reductions. (a) Unless the
------------------------------------------------
Required Prepayment Lenders shall otherwise agree, if any Capital Stock shall be
issued (other than (i) the issuance of common stock of Holdings upon the
exercise of the common stock options of Holdings held by directors, officers and
employees of Holdings, the Borrower and its Subsidiaries and (ii) Specified New
Equity Securities), or Indebtedness incurred, by Holdings, the Borrower or any
of its Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof
shall be applied on the date of such issuance or incurrence toward the
prepayment of the Term Loans and the repayment of Revolving Credit Loans (which
repayment shall not be required to be accompanied by any reduction of the
Revolving Credit Commitments) in accordance with Section 2.16(d); provided, that
--------
the proceeds of any issuance of Capital Stock shall not be applied to prepay the
Tranche B Term Loans.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if
on any date Holdings, the Borrower or any of its Subsidiaries shall receive Net
Cash Proceeds from any Asset Sale or Recovery Event then, unless a Reinvestment
Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be
applied on such date toward the prepayment of the Term Loans and the permanent
reduction of the Revolving Credit Commitments in accordance with Section
2.16(d); provided, that, notwithstanding the foregoing, the aggregate Net Cash
--------
Proceeds of Asset Sales that may be held by the Borrower for reinvestment and
excluded from the foregoing requirement pursuant to a Reinvestment Notice shall
not exceed $5,000,000 at any time and on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans and
the reduction of the Revolving Credit Commitments in accordance with Section
2.16(d).
(c) Unless the Required Prepayment Lenders shall otherwise agree, if,
for any fiscal year of the Borrower commencing with the fiscal year ending
December 31, 2000, there shall be Excess Cash Flow, the Borrower shall, on the
relevant Excess Cash Flow Application Date, apply 75% of such Excess Cash Flow
toward the prepayment of the Term Loans and the permanent reduction of the
Revolving Credit Commitments in accordance with Section 2.16(d). Each such
prepayment and commitment reduction shall be made on a date (an "Excess Cash
-----------
Flow Application Date") no later than five days after the earlier of the date
---------------------
on which the financial statements of the Borrower referred to in Section 6.1(a),
for the fiscal year with respect to which such prepayment is made, are required
to be delivered to the Lenders and the date such financial statements are
actually delivered.
(d) Amounts required by this Section to be applied to the prepayment
of the Tranche B Term Loans and/or the Tranche A Term Loans and the permanent
reduction of the Revolving Credit Commitments shall be allocated between the
Revolving Credit Facility and the
35
Tranche A Term Loan Facility and, if applicable, the Tranche B Term Loan
Facility, pro rata based upon the aggregate principal amount of Term Loans
--- ----
outstanding under the relevant Facility or Facilities and the aggregate amount
of the Revolving Credit Commitments. Any such permanent reduction of the
Revolving Credit Commitments shall be accompanied by prepayment of the Revolving
Credit Loans to the extent, if any, that the Total Revolving Extensions of
Credit exceed the amount of the Total Revolving Credit Commitments as so
reduced, provided that if the aggregate principal amount of Revolving Credit
--------
Loans then outstanding is less than the amount of such excess (because L/C
Obligations constitute a portion thereof), the Borrower shall, to the extent of
the balance of such excess, replace outstanding Letters of Credit and/or deposit
an amount in cash in a cash collateral account established with the
Administrative Agent for the benefit of the Lenders on terms and conditions
reasonably satisfactory to the Administrative Agent. Each prepayment of the
Loans under this Section (except in the case of Revolving Credit Loans that are
Base Rate Loans) shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid.
2.11 Conversion and Continuation Options. (a) The Borrower may elect
-----------------------------------
from time to time to convert Eurodollar Loans to Base Rate Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may
--------
only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert Base Rate Loans to Eurodollar
Loans by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election (which notice shall specify the length of
the initial Interest Period therefor), provided that no Base Rate Loan under a
--------
particular Facility may be converted into a Eurodollar Loan when any Event of
Default has occurred and is continuing and the Administrative Agent or the
Majority Facility Lenders in respect of such Facility have determined in its or
their sole discretion not to permit such conversions or after the date that is
one month prior to the final scheduled termination or maturity date of such
Facility. Upon receipt of any such notice the Administrative Agent shall
promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, provided
--------
that no Eurodollar Loan under a particular Facility may be continued as such
when any Event of Default has occurred and is continuing and the Administrative
Agent has or the Majority Facility Lenders in respect of such Facility have
determined in its or their sole discretion not to permit such continuations or
after the date that is one month prior to the final scheduled termination or
maturity date of such Facility; and provided, further, that if the Borrower
-------- -------
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso such
Loans shall be automatically converted to Base Rate Loans on the last day of
such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
36
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches.
---------------------------------------------------------
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans
hereunder and all selections of Interest Periods hereunder shall be in such
amounts and be made pursuant to such elections so that, after giving effect
thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $2,500,000 or a whole multiple of $500,000
in excess thereof and no more than 15 Eurodollar Tranches shall be outstanding
at any one time.
2.13 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
--------------------------------
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum equal
to the Base Rate plus the Applicable Margin.
(c) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum that is equal to (x) in the case of the Loans, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this Section plus 2% or (y) in the case of Reimbursement Obligations, the rate
----
applicable to Base Rate Loans under the Revolving Credit Facility plus 2%, and
----
if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall not be
paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate per annum equal to the rate
then applicable to Base Rate Loans under the relevant Facility plus 2% (or, in
----
the case or any such other amounts that do not relate to a particular Facility,
the rate then applicable to Base Rate Loans under the Revolving Credit Facility
plus 2%), in each case, with respect to clauses (i) and (ii) above, from the
----
date of such non-payment until such amount is paid in full (after as well as
before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
--------
shall be payable from time to time on demand.
2.14 Computation of Interest and Fees. (a) Interest, fees and
--------------------------------
commissions payable pursuant hereto shall be calculated on the basis of a 360-
day year for the actual days elapsed, except that, with respect to Base Rate
Loans the rate of interest on which is calculated on the basis of the Prime
Rate, the interest thereon shall be calculated on the basis of a 365- (or 366-,
as the case may be) day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the Borrower and the relevant Lenders
of each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as
37
soon as practicable notify the Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(d) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.13(a).
2.15 Inability to Determine Interest Rate. If prior to the first day
------------------------------------
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be converted, on the last day of the then current
Interest Period with respect thereto, to Base Rate Loans. Until such notice has
been withdrawn by the Administrative Agent, no further Eurodollar Loans under
the relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar Loans.
2.16 Pro Rata Treatment and Payments. (a) Each borrowing by the
-------------------------------
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee and any reduction of the Commitments of the Lenders shall be
made pro rata according to the respective Tranche A Term Loan Percentages,
--- ----
Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may
be, of the relevant Lenders. Each payment (other than prepayments) in respect of
principal or interest in respect of the Loans, each payment in respect of fees
payable hereunder, and each payment in respect of Reimbursement Obligations,
shall be applied to the amounts of such obligations owing to the Lenders pro
---
rata according to the respective amounts then due and owing to the Lenders.
----
38
(b) Except as otherwise provided in Section 2.16(d), each payment
(including each prepayment) by the Borrower on account of principal and interest
on the Term Loans shall be allocated among the Term Loan Lenders pro rata based
--- ----
on the outstanding principal amounts of the Term Loans then held by the Term
Loan Lenders, and shall be applied to the installments of the Term Loans pro
---
rata based on the remaining outstanding principal amounts of such installments;
----
provided, that mandatory prepayments of the Term Loans from the proceeds of any
--------
issuance of Capital Stock shall not be applied to prepay the Tranche B Term
Loans. Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be
allocated among the Revolving Credit Lenders pro rata based on the outstanding
--- ----
principal amounts of the Revolving Credit Loans then held by the Revolving
Credit Lenders.
(d) Notwithstanding anything to the contrary in Sections 2.9, 2.10 or
2.16(b), so long as any Tranche A Term Loans are outstanding, each Tranche B
Term Loan Lender may, at its option, decline up to 100% of the portion of any
optional prepayment or mandatory payment applicable to the Tranche B Term Loans
of such Lender; provided that the aggregate amount of optional and mandatory
prepayments declined by the Tranche B Term Loan Lenders may not exceed the
aggregate outstanding principal amount of the Tranche A Term Loans; accordingly,
with respect to the amount of any optional prepayment described in Section 2.9
or mandatory prepayment described in Section 2.10 that is allocated to Tranche B
Term Loans (such amounts, respectively, the "Optional Prepayment Amount" and the
--------------------------
"Mandatory Prepayment Amount"), at any time when Tranche A Term Loans remain
---------------------------
outstanding, the Borrower will:
(i) in the case of any optional prepayment of the Tranche B Term
Loans which the Borrower wishes to make, not later than 10 Business Days
prior to the date on which the Borrower wishes to make such optional
prepayment, give the Administrative Agent telephonic notice (promptly
confirmed in writing) requesting that the Administrative Agent prepare and
provide to each Tranche B Term Loan Lender a notice (each, a "Prepayment
----------
Option Notice") as described below; and
-------------
(ii) in the case of any mandatory prepayment required to be made
pursuant to Section 2.10, on the date specified in Section 2.10 for such
prepayment, (A) give the Administrative Agent telephonic notice (promptly
confirmed in writing) requesting that the Administrative Agent prepare and
provide to each Tranche B Term Loan Lender a Prepayment Option Notice as
described in clause (e) below and (B) deposit with the Administrative Agent
the Mandatory Prepayment Amount.
(e) As promptly as practicable after receiving such notice from the
Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender
a Prepayment Option Notice, which shall be substantially in the form of Exhibit
K, and shall include an offer by the Borrower to prepay on the Prepayment Date
the Tranche B Term Loans of such Tranche B Term Loan Lender by an amount equal
to the portion of the Optional Prepayment Amount or Mandatory Prepayment Amount,
as the case may be, indicated in such Lender's Prepayment
39
Option Notice as being applicable to such Tranche B Term Loan Lender's Tranche B
Term Loans. The "Prepayment Date" in respect of any Prepayment Option Notice
---------------
shall be the date which is (i) in the case of a Prepayment Option Notice
relating to an optional prepayment, the later of (A) five Business Days after
the date of such Prepayment Option Notice and (B) the date on which the Borrower
has advised the Administrative Agent that it wishes to make such optional
prepayment and (ii) in the case of a Prepayment Option Notice relating to a
mandatory prepayment, the date which is five Business Days after the date of
such Prepayment Option Notice.
(f) On the Prepayment Date:
(i) in the case of any optional prepayment, the Borrower shall pay to
the Administrative Agent the Optional Prepayment Amount, and the
Administrative Agent shall (A) apply the Optional Prepayment toward
prepayment of the outstanding Tranche B Term Loans in respect of which
Tranche B Term Loan Lenders have accepted optional prepayment as described
above and (B) apply the remaining portion of the Optional Prepayment Amount
not accepted by the Tranche B Term Loan Lenders toward prepayment of the
Tranche A Term Loans; and
(ii) in the case of any mandatory prepayment, the Administrative Agent
shall (A) apply the Mandatory Prepayment Amount toward prepayment of the
outstanding Tranche B Term Loans in respect of which Tranche B Term Loan
Lenders have accepted mandatory prepayment as described above and (B)
apply the remaining portion of the Mandatory Prepayment Amount not accepted
by the Tranche B Term Loan Lenders toward prepayment of the Tranche A Term
Loans.
(g) The application of any payment of Loans under any Facility
(including optional and mandatory prepayments) shall be made, first, to Base
-----
Rate Loans under such Facility and, second, to Eurodollar Loans under such
------
Facility. Each payment of the Loans (except in the case of Revolving Credit
Loans that are Base Rate Loans) shall be accompanied by accrued interest to the
date of such payment on the amount paid.
(h) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Payment Office, in Dollars and in immediately
available funds. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of
any
40
extension of any payment of principal pursuant to the preceding two sentences,
interest thereon shall be payable at the then applicable rate during such
extension.
(i) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(j) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
--- ----
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.17 Requirements of Law. (a) If the adoption of or any change in any
-------------------
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit, any Application or any
Eurodollar Loan made by it, or change the basis of taxation of payments to
such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 2.18 and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities
41
in or for the account of, advances, loans or other extensions of credit by,
or any other acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate hereunder;
or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled provided that the Borrower shall not
--------
be required to compensate a Lender pursuant to this paragraph for any amounts
incurred more than six months prior to the date on which such Lender notifies
the Borrower of such Lender's intention to claim compensation therefor; and
provided further that, if the circumstances giving rise to such claim have a
-------- -------
retroactive effect, then such six-month period shall be extended to include the
period of such retroactive effect.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction;
provided that the Borrower shall not be required to compensate a Lender
--------
pursuant to this paragraph for any amounts incurred more than six months prior
to the date on which such Lender notifies the Borrower of such Lender's
intention to claim compensation therefor; and provided further that, if the
-------- -------
circumstances giving rise to such claim have a retroactive effect, then such
six-month period shall be extended to include the period of such retroactive
effect. If any Lender becomes entitled to claim any additional amounts pursuant
to this Section, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this
42
Section shall survive the termination of this Agreement and the payment of the
Revolving Credit Loans and all other amounts payable hereunder.
2.18 Taxes. (a) All payments made by the Borrower under this
-----
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent's or such Lender's having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or Other Taxes
------------------
are required to be withheld from any amounts payable to any Agent or any Lender
hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement, provided, however, that the Borrower shall not be required to
-------- -------
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
the Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to Section 2.18(a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agents and the Lenders
for any incremental taxes, interest or penalties that may become payable by any
Agent or any Lender as a result of any such failure. The agreements in this
Section 2.18 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a U.S. Person as defined
in Section 7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the
---------------
Borrower and the Administrative Agent (or, in the case of a Participant, to the
Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service
43
Form W-8BEN or Form W-8EC1, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest" a statement
substantially in the form of Exhibit H and a Form W-8BEN, or any subsequent
versions thereof or successors thereto properly completed and duly executed by
such Non-U.S. Lender claiming complete exemption from, or a reduced rate of,
U.S. federal withholding tax on all payments by the Borrower under this
Agreement and the other Loan Documents. Such forms shall be delivered by each
Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of any Participant, on or before the date such Participant purchases
the related participation). In addition, each Non-U.S. Lender shall deliver such
forms promptly upon the obsolescence or invalidity of any form previously
delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify
the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form
of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such Non-
U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from or reduction of
non-U.S. withholding tax under the law of the jurisdiction in which the Borrower
is located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
--------
legally entitled to complete, execute and deliver such documentation and in such
Lender's reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.
2.19 Indemnity. The Borrower agrees to indemnify each Lender and to
---------
hold each Lender harmless from any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment or conversion of Eurodollar Loans on
a day that is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that
----
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A
44
certificate as to any amounts payable pursuant to this Section submitted to the
Borrower by any Lender shall be conclusive in the absence of manifest error.
This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
2.20 Illegality. Notwithstanding any other provision herein, if the
----------
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert Base Rate Loans to Eurodollar Loans shall forthwith be canceled and (b)
such Lender's Loans then outstanding as Eurodollar Loans, if any, shall be
converted automatically to Base Rate Loans on the respective last days of the
then current Interest Periods with respect to such Loans or within such earlier
period as required by law. If any such conversion of a Eurodollar Loan occurs on
a day which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to Section 2.19.
2.21 Change of Lending Office. Each Lender agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 2.17, 2.18(a) or
2.20 with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
--------
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
-------- -------
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.17, 2.18(a) or 2.20.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
--------------
the Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
-------
of Credit") for the account of the Borrower on any Business Day during the
---------
Revolving Credit Commitment Period in such form as may be approved from time to
time by the Issuing Lender; provided that the Issuing Lender shall have no
--------
obligation to issue any Letter of Credit if, after giving effect to such
issuance, (i) the L/C Obligations would exceed the L/C Commitment, (ii) the
aggregate amount of the Available Revolving Credit Commitments would be less
than zero or (iii) prior to the Transition Date, the Total Revolving Extensions
of Credit would exceed the Asset Coverage Test Amount, as most recently
determined prior to the date of issuance of such Letter of Credit pursuant to
Section 6.2(h). Each Letter of Credit shall (i) be denominated in Dollars and
(ii) expire no later than the earlier of (x) the first anniversary of its date
of issuance and (y) the date which is five Business Days prior to the Revolving
Credit Termination Date, provided that any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which
-------
shall in no event extend beyond the date referred to in clause (y) above).
45
(b) The Issuing Lender shall not at any time be obligated to issue
any Letter of Credit hereunder if such issuance would conflict with, or cause
the Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
(c) Letters of Credit outstanding under the Existing Credit
Agreement on the Second Amendment and Restatement Effective Date shall continue
to be Letters of Credit hereunder from and after the Second Amendment and
Restatement Effective Date.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
------------------------------------------
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of the Issuing Lender, and
such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and, within five Business Days of receipt of such
Application, shall issue the Letter of Credit requested thereby (but in no event
shall the Issuing Lender be required to issue any Letter of Credit earlier than
three Business Days after its receipt of the Application therefor and all such
other certificates, documents and other papers and information relating thereto)
by issuing the original of such Letter of Credit to the beneficiary thereof or
as otherwise may be agreed to by the Issuing Lender and the Borrower. The
Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower
promptly following the issuance thereof. The Issuing Lender shall promptly
furnish to the Administrative Agent, which shall in turn promptly furnish to the
Lenders, notice of the issuance of each Letter of Credit (including the amount
thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on the
----------------------
aggregate drawable amount of all outstanding Letters of Credit at a per annum
rate equal to the Applicable Margin then in effect with respect to Eurodollar
Loans under the Revolving Credit Facility, shared ratably among the Revolving
Credit Lenders and payable quarterly in arrears on each L/C Fee Payment Date
after the issuance date.
(b) The Borrower shall pay to the Issuing Lender, a fronting fee
with respect to each Letter of Credit, computed for the period from the last L/C
Fee Payment Date to the date upon which such payment is due hereunder at a rate
per annum to be agreed upon between the Borrower and the Issuing Lender,
calculated on the basis of a 365- (or 366-, as the case may be) day year, of the
aggregate amount available to be drawn under such Letter of Credit on the date
on which such fee is calculated. Such fronting fees shall be payable in arrears
on each L/C Fee Payment Date and shall be nonrefundable.
(c) In addition to the foregoing fees, the Borrower shall pay or
reimburse the Issuing Lender for such normal and customary costs and expenses as
are incurred or charged by the Issuing Lender in issuing, negotiating, effecting
payment under, amending or otherwise administering any Letter of Credit.
46
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees
------------------
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from the Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Credit Percentage in the Issuing Lender's obligations
and rights under each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Lender upon demand at
the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Credit Percentage of the amount of such draft,
or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by the Issuing Lender under any Letter of Credit is paid to
the Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to the Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to the
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
3.4(a) is not made available to the Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, the Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum
applicable to Base Rate Loans under the Revolving Credit Facility. A certificate
of the Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
---
rata share of such payment in accordance with Section 3.4(a), the Issuing Lender
----
receives any payment related to such Letter of Credit (whether directly from the
Borrower or otherwise, including proceeds of collateral applied thereto by the
Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
--- ----
provided, however, that in the event that any such payment received by the
-------- -------
Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
----------------------------------------
reimburse the Issuing Lender on each date on which the Issuing Lender notifies
the Borrower of the date and amount of a draft presented under any Letter of
Credit and paid by the Issuing Lender for the amount of (a) such draft so paid
and (b) any taxes, fees, charges or other costs or
47
expenses incurred by the Issuing Lender in connection with such payment. Each
such payment shall be made to the Issuing Lender at its address for notices
specified herein in lawful money of the United States of America and in
immediately available funds. Interest shall be payable on the amount of any
drawing under any Letter of Credit (plus any taxes, fees, charges or other costs
payable by the Borrower pursuant to clause (b) of the preceding sentence) from
the date of such drawing until payment in full at the rate set forth in (i)
until the second Business Day following the date of the applicable drawing,
Section 2.13(b) and (ii) thereafter, Section 2.13(c). Each drawing under any
Letter of Credit shall (unless an event of the type described in clause (i) or
(ii) of Section 8(f) shall have occurred and be continuing with respect to the
Borrower, in which case the procedures specified in Section 3.4 for funding by
L/C Participants shall apply) constitute a request by the Borrower to the
Administrative Agent for a borrowing pursuant to Section 2.5 of Base Rate Loans
in the amount of such drawing. The Borrowing Date with respect to such borrowing
shall be the first date on which a borrowing of Revolving Credit Loans could be
made pursuant to Section 2.5 if the Administrative Agent had received a notice
of such borrowing at the time of such drawing under such Letter of Credit.
3.6 Obligations Absolute. The Borrower's obligations under this
--------------------
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against the Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. The Issuing Lender
shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the Issuing Lender. The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards or care specified in the Uniform
Commercial Code of the State of New York, shall be binding on the Borrower and
shall not result in any liability of the Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower of the date and amount thereof. The responsibility of the Issuing
Lender to the Borrower in connection with any draft presented for payment under
any Letter of Credit shall, in addition to any payment obligation expressly
provided for in such Letter of Credit, be limited to determining that the
documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
48
3.8 Applications. To the extent that any provision of any
------------
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and
to make Loans and issue or participate in the Letters of Credit, Holdings and
the Borrower hereby jointly and severally represent and warrant to each Agent
and each Lender that:
4.1 Financial Condition. (a) The unaudited pro forma consolidated
------------------- --- -----
balance sheet of Holdings, the Borrower and its consolidated Subsidiaries as at
September 30, 1999 (including the notes thereto) (the "Pro Forma Balance
-----------------
Sheet"), copies of which have heretofore been furnished to each Lender, has been
-----
prepared giving effect (as if such events had occurred on such date) to (i) the
Loans to be made on the Second Amendment and Restatement Effective Date and the
use of the proceeds thereof described in Section 4.16 and (ii) the payment of
fees and expenses in connection with the foregoing. The Pro Forma Balance Sheet
has been prepared based on the best information available to the Borrower as of
the date of delivery thereof, and presents fairly in all material respects on a
pro forma basis the estimated financial position of Holdings, the Borrower and
--- -----
its Subsidiaries as at September 30, 1999, assuming that the events specified in
the preceding sentence had actually occurred at such date.
(b) The audited consolidated balance sheets of Holdings and its
Subsidiaries as at December 31, 1998 and December 31, 1997 and the related
statements of income and of cash flows for the three fiscal years ended December
31, 1998, reported on by and accompanied by an unqualified report from Xxxxxx
Xxxxxxxx LLP, present fairly in all material respects the consolidated financial
condition of Holdings and its Subsidiaries as at such date, and the consolidated
results of its operations and its consolidated cash flows for the respective
fiscal years then ended. The unaudited consolidated balance sheet of Holdings
and its Subsidiaries and of the Borrower and its Subsidiaries as at September
30, 1999, and the related unaudited consolidated statements of income and cash
flows for the nine-month period ended on such date, present fairly in all
material respects the consolidated financial condition of Holdings and its
Subsidiaries and of the Borrower and its Subsidiaries, as the case may be, as at
such date, and the consolidated results of its operations and its consolidated
cash flows for the nine-month period then ended (subject to normal year-end
audit adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by the
aforementioned firm of accountants and disclosed therein). Holdings, the
Borrower and its Subsidiaries do not have any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including, without limitation, any
interest rate or foreign currency swap or exchange transaction or other
obligation in respect of derivatives, that are not reflected in the most recent
financial statements referred to in this paragraph. During the period from
September 30, 1999 to and including the date hereof there has been no
Disposition by Holdings or the Borrower of any material part of its business or
Property.
49
4.2 No Change. Since December 31, 1998 there has been no
---------
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
4.3 Corporate Existence; Compliance with Law. Each of Holdings, the
----------------------------------------
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification except to the extent the failure to be so qualified
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
-------------------------------------------------------
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate action to authorize the execution, delivery and performance of the
Loan Documents to which it is a party and, in the case of the Borrower, to
authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in
Schedule 4.4, which consents, authorizations, filings and notices have been
obtained or made and are in full force and effect and (ii) the filings referred
to in Section 4.19. Each Loan Document has been duly executed and delivered on
behalf of each Loan Party party thereto. This Agreement constitutes, and each
other Loan Document upon execution will constitute, a legal, valid and binding
obligation of each Loan Party party thereto, enforceable against each such Loan
Party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
4.5 No Legal Bar. The execution, delivery and performance of this
------------
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of Holdings, the Borrower or
any of its Subsidiaries except as could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and except for such Contractual
Obligations pursuant to which the Administrative Agent is required to execute
and deliver a non-disturbance agreement and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation
(other than the Liens created by the Security Documents). No
50
Requirement of Law or Contractual Obligation applicable to the Borrower or any
of its Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
4.6 No Material Litigation. (a) No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of Holdings or the Borrower, threatened by or against Holdings,
the Borrower or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.
4.7 No Default. Neither Holdings, the Borrower nor any of its
----------
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of Holdings, the Borrower and
----------------------------
its Subsidiaries has title in fee simple to, a valid leasehold interest in, or
an easement, license or permit to occupy, all its real property, and good title
to, a valid leasehold interest in, or an easement, license or permit to occupy,
all its other Property, and none of such Property is subject to any Lien except
as permitted by Section 7.3.
4.9 Intellectual Property. Holdings, the Borrower and each of its
---------------------
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual
Property, nor does Holdings or the Borrower know of any valid basis for any such
claim. The use of Intellectual Property by Holdings, the Borrower and its
Subsidiaries does not infringe on the rights of any Person in any material
respect.
4.10 Taxes. Each of Holdings, the Borrower and each of its
-----
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its Property and all other taxes, fees or other charges imposed on it or
any of its Property by any Governmental Authority (other than any the amount or
validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of Holdings, the Borrower or its Subsidiaries, as the case
may be); no tax Lien has been filed, and, to the knowledge of Holdings and the
Borrower, no claim is being asserted, with respect to any such tax, fee or other
charge.
4.11 Federal Regulations. No part of the proceeds of any Loans will
-------------------
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each
51
Lender a statement to the foregoing effect in conformity with the requirements
of FR From G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor disputes
-------------
against Holdings, the Borrower or any of its Subsidiaries pending or, to the
knowledge of Holdings or the Borrower, threatened that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect. Hours
worked by and payment made to employees of Holdings, the Borrower and its
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law dealing with such matters that (individually
or in the aggregate) could reasonably be expected to have a Material Adverse
Effect. All payments due from Holdings, the Borrower or any of its Subsidiaries
on account of employee health and welfare insurance that (individually or in the
aggregate) could reasonably be expected to have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of Holdings, the
Borrower or the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
-----
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
-----------------------------------------
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule 4.15
------------
constitute all the Subsidiaries of the Borrower as of the Second Amendment and
Restatement Effective Date. Schedule 4.15 sets forth as of the Second Amendment
and Restatement Effective Date the name and jurisdiction of incorporation of
each Subsidiary and, as to each such Subsidiary, the percentage of each class of
Capital Stock owned by any Loan Party.
52
(b) There are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors' qualifying shares) of any
nature relating to any Capital Stock of the Borrower or any Subsidiary.
4.16 Use of Proceeds. The proceeds of the Tranche B Term Loans shall
---------------
be used, and the proceeds of the Tranche A Term Loans and Revolving Credit Loans
and the Letters of Credit were used and shall be used, to finance (i) the
acquisition and/or construction of wireless transmission towers, tower sites and
related assets, (ii) the acquisition of rights to place antennae on the sides
and rooftops of buildings owned by others, (iii) the acquisition of leasehold
interests in existing transmission towers to be subleased to others, (iv) the
acquisition of or investments in entities the principal assets of which are
towers, tower sites and related assets, (v) the Borrower's business of managing
transmission towers owned by others, (vi) the Borrower's existing wireless
transmission towers and related assets and (vii) other working capital needs and
general corporate purposes of the Borrower and its Subsidiaries.
4.17 Environmental Matters. Other than exceptions to any of the
---------------------
following that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect:
(a) the Borrower and its Subsidiaries: (i) are, and within the
period of all applicable statutes of limitation have been, in compliance
with all applicable Environmental Laws; (ii) hold all Environmental Permits
(each of which is in full force and effect) required for any of their
current or intended operations or for any property owned, leased, or
otherwise operated by any of them; (iii) are, and within the period of all
applicable statutes of limitation have been, in compliance with all of
their Environmental Permits; and (iv) reasonably believe that: each of
their Environmental Permits will be timely renewed and complied with,
without material expense; any additional Environmental Permits that may be
required of any of them will be timely obtained and complied with, without
material expense; and compliance with any Environmental Law that is or is
expected to become applicable to any of them will be timely attained and
maintained, without material expense.
(b) Materials of Environmental Concern are not present at, on,
under, in, or about any real property now or formerly owned, leased or
operated by the Borrower or any of its Subsidiaries, or at any other
location (including, without limitation, any location to which Materials of
Environmental Concern have been sent for re-use or recycling or for
treatment, storage, or disposal) which could reasonably be expected to (i)
give rise to liability of the Borrower or any of its Subsidiaries under any
applicable Environmental Law or otherwise result in costs to the Borrower
or any of its Subsidiaries, or (ii) interfere with the Borrower's or any of
its Subsidiaries' continued operations, or (iii) impair the fair saleable
value of any real property owned or leased by the Borrower or any of its
Subsidiaries.
53
(c) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or relating
to any Environmental Law to which the Borrower or any of its Subsidiaries
is, or to the knowledge of the Borrower or any of its Subsidiaries will be,
named as a party that is pending or, to the knowledge of the Borrower or
any of its Subsidiaries, threatened.
(d) Neither the Borrower nor any of its Subsidiaries has received
any written request for information, or been notified that it is a
potentially responsible party under or relating to the federal
Comprehensive Environmental Response, Compensation, and Liability Act or
any similar Environmental Law, or with respect to any Materials of
Environmental Concern.
(e) Neither the Borrower nor any of its Subsidiaries has entered
into or agreed to any consent decree, order, or settlement or other
agreement, or is subject to any judgment, decree, or order or other
agreement, in any judicial, administrative, arbitral, or other forum for
dispute resolution, relating to compliance with or liability under any
Environmental Law.
(f) Neither the Borrower nor any of its Subsidiaries has assumed or
retained, by contract or operation of law, any liabilities of any kind,
fixed or contingent, known or unknown, under any Environmental Law or with
respect to any Material of Environmental Concern.
4.18 Accuracy of Information, etc. No statement or information
-----------------------------
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other written document, certificate or statement
furnished to the Administrative Agent or the Lenders or any of them, by or on
behalf of any Loan Party for use in connection with the transactions
contemplated by this Agreement or the other Loan Documents, contained as of the
date such statement, information, document or certificate was so furnished (or,
in the case of the Confidential Information Memorandum, as of the Second
Amendment and Restatement Effective Date), any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained herein or therein not misleading. The projections and pro
---
forma financial information contained in the materials referenced above are
-----
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. There is no fact actually known to any Loan Party
that could reasonably be expected to have a Material Adverse Effect that has not
been expressly disclosed herein, in the other Loan Documents, in the
Confidential Information Memorandum or in any other documents, certificates and
statements furnished to the Agents and the Lenders for use in connection with
the transactions contemplated hereby and by the other Loan Documents.
4.19 Security Documents. (a) The Guarantee and Collateral Agreement
------------------
is effective to create in favor of the Administrative Agent, for the benefit of
the Lenders, a legal,
54
valid and enforceable security interest in the Collateral described therein and
proceeds thereof. In the case of the Pledged Stock described in the Guarantee
and Collateral Agreement, stock certificates representing such Pledged Stock
having been delivered to the Administrative Agent, and in the case of the other
Collateral described in the Guarantee and Collateral Agreement, financing
statements in appropriate form having been filed in the offices specified on
Schedule 4.19(a) and such other filings as are specified on Schedule 3 to the
Guarantee and Collateral Agreement having been duly completed, the Guarantee and
Collateral Agreement constitutes a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and superior in
right to any other Person (except, in the case of Collateral other than Pledged
Stock, Liens permitted by Section 7.3). Notwithstanding the foregoing, it is
understood that UCC-1 financing statements are not being filed in respect of
equipment in locations where the value of such equipment is less than $5000 or
in local jurisdictions requiring dual filings, and that fixture filings are not
being made in respect of Tower locations which are not Mortgaged Properties.
(b) Each of the Mortgages executed and delivered on or prior to the
Second Amendment and Restatement Effective Date is, and each of the Mortgages
executed and delivered after the Second Amendment and Restatement Effective Date
will be when so executed and delivered, effective to create in favor of the
Administrative Agent, for the benefit of the Lenders, a legal, valid and
enforceable Lien on the Mortgaged Properties described therein and proceeds
thereof, and when such Mortgages are recorded in the appropriate recording
office, each such Mortgage shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties in the
Mortgaged Properties and the proceeds thereof, as security for the Obligations
(as defined in the relevant Mortgage), in each case prior and superior in right
to any other Person.
4.20 Solvency. Each Loan Party is, and after giving effect to the
--------
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
4.21 Regulation H. No Mortgage encumbers improved real property
------------
which is located in an area that has been identified by the Secretary of Housing
and Urban Development as an area having special flood hazards and in which flood
insurance has been made available under the National Flood Insurance Act of
1968, unless such flood insurance either has been obtained and evidence thereof
provided to the Administrative Agent or is unavailable based upon the nature of
the improvements located on such real property.
4.22 Year 2000 Matters. Any reprogramming required to permit the
-----------------
proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which Borrower's systems
interface) and the testing of all such systems and equipment, as so
reprogrammed, has been completed. The cost to the Borrower of such reprogramming
and testing and of the reasonably foreseeable consequences of year 2000 to the
Borrower (including, without limitation, reprogramming errors and the failure of
others' systems
55
or equipment) will not result in a Default or a Material Adverse Effect. Except
for such of the reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the Borrower and
its Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to permit the Borrower
to conduct its business without Material Adverse Effect.
4.23 Tower Reports. The information set forth in the Initial Tower
-------------
Report and the Initial Tower Report Supplement was true and correct in all
material respects as of the respective dates thereof.
4.24 Tower Sites. At least a majority of the Towers that do not
-----------
constitute Mortgaged Properties are constructed so as to be capable of being
moved from their present locations and except to the extent (i) recordation of
any renewal, extension, amendment, assignment or other instrument in connection
with any lease of real property in the applicable public records may be required
in order to permit removal of a Tower and (ii) removal and/or disassembly of a
Tower may require the Borrower and its Subsidiaries to obtain the consent of, or
a permit from, the applicable Governmental Authority (which consent or permit
the Borrower believes is reasonably likely to be issued if requested by the
Borrower or any of its Subsidiaries), the Borrower and its Subsidiaries have the
right to remove such Towers from their present locations.
4.25 Real Property Leases. The present and contemplated use of the
--------------------
real property owned or leased by the Borrower or any of its Subsidiaries for the
operation of Towers is in compliance in all material respects with all
applicable zoning ordinances and regulations and other laws and regulations
where failure so to comply would result, or create reasonable risk of resulting,
in a Material Adverse Effect. Each lease pursuant to which the Borrower or any
of its Subsidiaries, as lessee, acquired rights in real property upon which any
Tower is situated is in full force and effect, the Borrower or such Subsidiary
has all rights of the lessee thereunder, there has been no default in the
performance of any of its terms or conditions by the Borrower or any such
Subsidiary nor (to the best of the Borrower's knowledge) any other party
thereto, and no claims of default have been asserted with respect thereto where
such default would result, or create a reasonable risk of resulting, in a
Material Adverse Effect.
4.26 FCC and FAA Matters; State Regulatory Compliance. (a) The
------------------------------------------------
Borrower (i) has duly and timely filed all material reports, registrations and
other material filings, if any, which are required to be filed by it or any of
its Subsidiaries under the Communications Act or any other applicable law, rule
or regulation of any Governmental Authority, including the FCC and the FAA, the
non-filing of which would not result, or be reasonably likely to result, in a
Material Adverse Effect and (ii) is in compliance with all such laws, rules,
regulations and ordinances, including those promulgated by the FCC and the FAA,
to the extent the non-compliance with which would result, or be reasonably
likely to result, in a Material Adverse Effect. All information provided by or
on behalf of the Borrower or any Affiliate in any material filing, if any, with
the FCC and the FAA relating to the business of the Borrower and its
Subsidiaries was, to the knowledge of such Person at the time of filing,
complete and correct in all material respects when made, and the FCC and the FAA
have been notified of any substantial
56
or significant changes in such information as may be required in accordance with
applicable Requirements of Law.
(b) The Borrower and its Subsidiaries have all permits,
certificates, licenses, tariff approvals and other authorizations from all state
and federal Governmental Authorities required to conduct their current business
except for such permits, certificates, licenses, tariff approvals and other
authorizations as could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(c) Except as described on Schedule 4.26, the Borrower has no
knowledge of any investigation, notice of apparent liability, violation,
forfeiture or other order or complaint issued by or before any state or federal
Governmental Authority, or of any other proceedings of or before any state or
federal Governmental Authority, which could reasonably be expected to have a
Material Adverse Effect.
4.27 Representations and Warranties in Existing Credit Agreement. The
-----------------------------------------------------------
representations and warranties contained in Section 4 of the Existing Credit
Agreement were true and correct in all material respects on and as of the dates
when made pursuant to the Existing Credit Agreement.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The occurrence of the
-----------------------------------------
Closing Date, and the agreement of each Lender to make the initial extension of
credit requested to be made by it on the Closing Date, were subject to the
satisfaction, prior to or concurrently with the making of such extension of
credit on the Closing Date, of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
--------------
this Agreement, executed and delivered by a duly authorized officer of
Holdings and the Borrower, (ii) the Guarantee and Collateral Agreement,
executed and delivered by a duly authorized officer of Holdings, the
Borrower and each Subsidiary Guarantor, (iii) subject to Section 6.12, a
Mortgage covering each of the Mortgaged Properties described in Schedule
1.1, executed and delivered by a duly authorized officer of each party
thereto, and (iv) for the account of each relevant Lender, Notes conforming
to the requirements hereof and executed and delivered by a duly authorized
officer of the Borrower.
(b) Pro Forma Balance Sheet; Financial Statements. The Lenders
---------------------------------------------
shall have received (i) the Pro Forma Balance Sheet and (ii) the
consolidated financial statements of Holdings and the Borrower described in
Section 4.1, and such financial statements shall not, in the reasonable
judgment of the Lenders, reflect any material adverse change in the
consolidated financial condition of Holdings, the Borrower and its
Subsidiaries, as reflected in the financial statements or projections
contained in the Confidential Information Memorandum.
57
(c) Initial Tower Report. The Lenders shall have received the
--------------------
Initial Tower Report, in form, scope and substance satisfactory to them.
(d) Approvals. All governmental and third party approvals (including
---------
landlords' and other consents) necessary or, in the discretion of the
Administrative Agent, advisable in connection with the continuing
operations of Holdings, the Borrower and its Subsidiaries and the
transactions contemplated hereby shall have been obtained and be in full
force and effect, except for such approvals as could not reasonably be
expected to have a Material Adverse Effect.
(e) Related Agreements. The Administrative Agent shall have
------------------
received (in a form reasonably satisfactory to the Administrative Agent),
with a copy for each Lender, true and correct copies, certified as to
authenticity by the Borrower, of the Senior Discount Notes Indenture and
such other documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any debt
instrument, security agreement or other material contract to which any of
the Loan Parties may be a party.
(f) Existing Credit Agreement. All loans outstanding, and all
-------------------------
security interests securing such loans, under the Existing Credit Agreement
shall have been assigned to the Lenders in a manner satisfactory to the
Administrative Agent or, with respect to such security interests, at the
request of the Administrative Agent, arrangements satisfactory to the
Administrative Agent shall have been made for the termination of such
security interests.
(g) Fees. The Lenders, LBI, the Co-Arrangers and the Administrative
----
Agent shall have received all fees required to be paid, and all expenses
for which invoices have been presented (including reasonable fees,
disbursements and other charges of counsel to the Agents), on or before the
Closing Date. All such amounts will be paid with proceeds of Loans made on
the Closing Date and will be reflected in the funding instructions given by
the Borrower to the Administrative Agent on or before the Closing Date.
(h) Business Plan. The Lenders shall have received a reasonably
-------------
satisfactory business plan for fiscal years 1997-2007 and a reasonably
satisfactory written analysis of the business and prospects of Holdings,
the Borrower and its Subsidiaries for the period from the Closing Date
through fiscal year 2005.
(i) Solvency Analysis. The Lenders shall have received a reasonably
-----------------
satisfactory solvency analysis certified by the chief financial officer of
Holdings or other senior executive officer of Holdings satisfactory to the
Lenders which shall document the solvency of Holdings, the Borrower and its
Subsidiaries considered as a whole after giving effect to the transactions
contemplated hereby.
(j) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent lien search in each of the jurisdictions where assets
of the Loan Parties are located,
58
and such search shall reveal no liens on any of the assets of Holdings, the
Borrower or its Subsidiaries except for liens permitted by Section 7.3 or
liens to be discharged on or prior to the Closing Date pursuant to
documentation satisfactory to the Administrative Agent.
(k) Closing Certificate. The Administrative Agent shall have
-------------------
received a certificate of each Loan Party, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate insertions and
attachments.
(l) Legal Opinions. The Administrative Agent shall have received
--------------
the following executed legal opinions:
(i) the legal opinion of Gunster, Yoakley, Xxxxxx-Xxxxx &
Xxxxxxx, P.A., counsel to the Borrower and its Subsidiaries,
substantially in the form of Exhibit F; and
(ii) subject to Section 6.12, the legal opinion of local
counsel in each of Georgia, Indiana, Maryland and Tennessee and of
such other special and local counsel as may be required by the
Administrative Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(m) Pledged Stock; Stock Power; Pledged Notes. The Administrative
-----------------------------------------
Agent shall have received (i) the certificates representing the shares of
Capital Stock pledged pursuant to the Guarantee and Collateral Agreement,
together with an undated stock power for each such certificate executed in
blank by a duly authorized officer of the pledgor thereof and (ii) each
promissory note pledged to the Administrative Agent pursuant to the
Guarantee and Collateral Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank satisfactory to the
Administrative Agent) by the pledgor thereof.
(n) Filings, Registrations and Recordings. Subject to Section 6.12,
-------------------------------------
each document (including, without limitation, any Uniform Commercial Code
financing statement) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for the
benefit of the Lenders, a perfected Lien on the Collateral described
therein, prior and superior in right to any other Person (other than with
respect to Liens expressly permitted by Section 7.3), shall be in proper
form for filing, registration or recordation.
(o) Insurance. The Administrative Agent shall have received
---------
insurance certificates satisfying the requirements of Section 5.3 of the
Guarantee and Collateral Agreement.
59
5.2 Conditions to Each Extension of Credit. The agreement of each
--------------------------------------
Lender to make any extension of credit requested to be made by it on any date
(including, without limitation, its initial extension of credit and any
extension of credit on or after the Second Amendment and Restatement Effective
Date) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct on and as of such date as if made on and as of
such date except for such representations and warranties expressly stated
to be made as of a specific earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
5.3 Conditions to Second Amendment and Restatement Effective Date.
-------------------------------------------------------------
The Second Amendment and Restatement Effective Date shall be the date of
satisfaction of the following conditions precedent:
(a) Agreement; Second Lender Addenda; Consents. The Administrative
------------------------------------------
Agent shall have executed this Agreement and shall have received
counterparts hereof executed by the Borrower, Holdings, each Agent and the
Arranger. The Administrative Agent shall have received (i) a Second Lender
Addendum executed by the Borrower and by the Required Lenders, each Lender
whose Revolving Credit Commitment is being increased hereby and each
Tranche B Term Loan Lender and (ii) a Consent executed by each Loan Party
other than the Borrower.
(b) Pro Forma Balance Sheet; Financial Statements. The Lenders
---------------------------------------------
shall have received the Pro Forma Balance Sheet of Holdings and the
Borrower described in Section 4.1(a).
(c) Approvals. All governmental and third party approvals (including
---------
landlords' and other consents, and consents under the outstanding Senior
Discount Notes) necessary or, in the discretion of the Administrative
Agent, advisable in connection with the continuing operations of Holdings,
the Borrower and its Subsidiaries and the transactions contemplated hereby
shall have been obtained and be in full force and effect, except for such
approvals as could not reasonably be expected to have a Material Adverse
Effect.
(d) Fees. The Lenders, LBI and the Administrative Agent shall have
----
received all fees required to be paid, and all expenses for which invoices
have been presented
60
(including reasonable fees, disbursements and other charges of counsel to
the Agents), on or before the Second Amendment and Restatement Effective
Date. All such amounts will be paid with proceeds of Loans made on the
Second Amendment and Restatement Effective Date and will be reflected in
the funding instructions given by the Borrower to the Administrative Agent
on or before the Second Amendment and Restatement Effective Date.
(e) Business Plan. The Lenders shall have received a reasonably
-------------
satisfactory business plan for fiscal years 1999-2007 and a reasonably
satisfactory written analysis of the business and prospects of Holdings,
the Borrower and its Subsidiaries for the period from the Second Amendment
and Restatement Effective Date through fiscal year 2005.
(f) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent lien search in each of the jurisdictions where assets
of the Loan Parties are located (to the extent additional jurisdictions
have become relevant since the date of the lien searches conducted in
connection with the Closing Date) and such search shall reveal no liens on
any of the assets of Holdings, the Borrower or its Subsidiaries except for
liens permitted by Section 7.3.
(g) Solvency Analysis. The Lenders shall have received a reasonably
-----------------
satisfactory solvency analysis certified by the chief financial officer of
Holdings or other senior executive officer of Holdings satisfactory to the
Lenders which shall document the solvency of Holdings, the Borrower and its
Subsidiaries considered as a whole after giving effect to the amendment and
restatement of the Existing Credit Agreement, the making of the Tranche B
Term Loans on the Second Amendment and Restatement Effective Date and the
other transactions contemplated hereby.
(h) Resolutions. The Administrative Agent shall have received, with
-----------
a counterpart for each Lender, a copy of the resolutions, in form and
substance satisfactory to the Administrative Agent, of the Board of
Directors of the Borrower authorizing the execution of this Agreement and
the performance of the Borrower's obligations hereunder and any borrowings
hereunder from time to time, certified by the Secretary or an Assistant
Secretary of the Borrower, as of the Second Amendment and Restatement
Effective Date, which certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded as of the
date of such certificate.
(i) Incumbency Certificate. The Administrative Agent shall have
----------------------
received, to the extent that it has not previously received, a certificate
of the Secretary or Assistant Secretary of the Borrower, dated the Second
Amendment and Restatement Effective Date, as to the authority, incumbency
and signature of each of the officers signing this Agreement, and any other
instrument or document delivered by the Borrower in connection herewith,
together with evidence of the incumbency of such Secretary or Assistant
Secretary.
61
(j) Legal Opinion. The Administrative Agent shall have received,
-------------
with a counterpart for each Lender, an executed legal opinion of Gunster,
Yoakley, Xxxxxx-Xxxxx & Xxxxxxx, P.A., counsel to the Loan Parties, dated
the Second Amendment and Restatement Effective Date and addressed to the
Administrative Agent and Lenders which shall cover such matters incident to
this Agreement and the transactions contemplated hereby as may be
reasonably requested by the Administrative Agent.
SECTION 6. AFFIRMATIVE COVENANTS
Holdings and the Borrower hereby jointly and severally agree that, so
long as the Commitments remain in effect, any Letter of Credit remains
outstanding or any Loan or other amount is owing to any Lender or any Agent
hereunder, each of Holdings and the Borrower shall and shall cause each of its
Subsidiaries to:
6.1 Financial Statements. Furnish to the Administrative Agent (and
--------------------
the Administrative Agent shall furnish to each other Agent and to each Lender):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
and unaudited consolidating balance sheets of Holdings and its consolidated
Subsidiaries and of the Borrower and its consolidated Subsidiaries, in each
case as at the end of such year and the related audited consolidated and
unaudited consolidating statements of income and of cash flows for such
year, setting forth in each case in comparative form the figures for the
previous year, reported on, in the case of such audited financial
statements, without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by Xxxxxx Xxxxxxxx
LLP or other independent certified public accountants of nationally
recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated and consolidating balance
sheets of Holdings and its consolidated Subsidiaries and of the Borrower
and its consolidated Subsidiaries, in each case as at the end of such
quarter, and the related unaudited consolidated and consolidating
statements of income and of cash flows for such quarter and the portion of
the fiscal year through the end of such quarter, setting forth in each case
in comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments); and
(c) as soon as available, but in any event not later than 45 days
after the end of each month occurring during each fiscal year of the
Borrower (other than the third, sixth, ninth and twelfth such month), the
unaudited consolidated and consolidating balance sheets of Holdings and its
Subsidiaries and of the Borrower and its Subsidiaries, in each case as at
the end of such month and the related unaudited consolidated statements of
income for such month and the portion of the fiscal year through the end of
such month,
62
setting forth in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Administrative
Agent (and the Administrative Agent shall furnish to each other Agent and to
each Lender) or, in the case of clause (l), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default in respect of the financial covenants contained
in Section 7.1, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating
that, to the best of each such Responsible Officer's knowledge, each Loan
Party during such period has observed or performed all of its covenants and
other agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to which it is a party to be
observed, performed or satisfied by it, and that such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and (ii) in the case of quarterly or annual
financial statements, a Compliance Certificate containing all information
and calculations necessary for determining compliance by Holdings, the
Borrower and its Subsidiaries with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal year
of the Borrower, as the case may be;
(c) concurrently with the delivery of any financial statements
pursuant to Section 6.1 prior to the Transition Date, a certificate of a
Responsible Officer stating that, as of the date of such delivery, the sum
of the aggregate outstanding principal amount of Term Loans plus the Total
Revolving Extensions of Credit does not exceed the Asset Coverage Test
Amount and sett
