EXHIBIT 10.1
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FOURTH CONSENT, AMENDMENT AND WAIVER TO FUNDING
AGREEMENT
Fourth Consent, Amendment and Waiver (this "CONSENT, AMENDMENT AND
WAIVER"), dated as of July 2, 2002, to that certain Funding Agreement dated as
of May 15, 2002 and amended as of June 12, 2002, June 19, 2002 and June 25, 2002
among SpectraSite Holdings, Inc. and SpectraSite Intermediate Holdings, LLC
(together, the "CO-ISSUERS") and the several purchasers named in Schedule I
thereto (such agreement being referred to herein as the "FUNDING AGREEMENT").
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Funding Agreement.
WHEREAS, pursuant to Section 1.01(c) of the Funding Agreement, Parent
may not make certain changes to the terms of any Offer without the prior written
consent of the Required Purchasers; and
WHEREAS, pursuant to Section 8.05 of the Funding Agreement, the
Co-Issuers and the Required Holders desire to amend the Funding Agreement as
more particularly set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree, as
follows:
1. Pursuant to Section 1.01(c) of the Funding Agreement, the
Required Purchasers hereby consent to the extension of the Expiration Date of
each Exchange Offer to 5:00 P.M., New York City Time, on July 15, 2002.
2. Each party to this Consent, Amendment and Waiver hereby
waives, for purposes of the extension of the Expiration Dates of the Exchange
Offers in Section 1 of this Consent, Amendment and Waiver, the second proviso to
the first sentence of Section 1.01(c) of the Funding Agreement.
3. Each party to this Consent, Amendment and Waiver hereby
represents and warrants to the other parties hereto that (a) the execution,
delivery and performance of this Consent, Amendment and Waiver by such party
will not violate any provision of applicable law, any order of any court or
other agency of government, or any provision of any indenture, agreement or
other instrument to which such party or any of its properties or assets is
bound, or conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any such indenture, agreement or other
instrument, except for such violations, conflicts or breaches which,
individually or in the aggregate, would not have a material adverse effect on
such party and its subsidiaries, taken as a whole,
and (b) this Consent, Amendment and Waiver has been duly executed and delivered
by such party and when this Consent, Amendment and Waiver is executed by the
other parties hereto, the Funding Agreement as amended by this Consent,
Amendment and Waiver, will constitute the legal, valid and binding obligation of
such party, enforceable in accordance with its terms.
4. This Consent, Amendment and Waiver shall not constitute an
amendment or modification of any other provision of the Funding Agreement not
expressly referred to herein. Except as expressly amended or modified herein,
the provisions of the Funding Agreement are and shall remain in full force and
effect. Each reference to "hereof", "hereunder", "herein" and "hereby" and each
other similar reference and each reference to "this Agreement" and each other
similar reference contained in the Funding Agreement shall, after this Consent,
Amendment and Waiver becomes effective, refer to the Funding Agreement as
amended hereby.
5. This Consent, Amendment and Waiver may be executed by one or
more of the parties hereto on any number of separate counterparts and all such
counterparts shall be deemed to be one and the same instrument. Each party
hereto confirms that any facsimile copy of such party's executed counterpart of
this Consent, Amendment and Waiver (or its signature page thereof) shall be
deemed to be an executed original thereof.
6. THIS CONSENT, AMENDMENT AND WAIVER SHALL BE GOVERNED BY, AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
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CONSENT, AMENDMENT AND WAIVER TO FUNDING AGREEMENT
SPECTRASITE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President and CEO
SPECTRASITE INTERMEDIATE HOLDINGS, LLC
By SpectraSite Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President and CEO
WELSH, CARSON, XXXXXXXX & XXXXX VIII, L.P.
By WCAS VIII Associates, L.L.C., Its
General Partner
By: /s/ Xxxxxxxx Rather
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Name: Xxxxxxxx Rather
Title: Managing Member
WELSH, CARSON, XXXXXXXX & XXXXX IX, L.P.
By WCAS IX Associates, L.L.C., Its
General Partner
By: /s/ Xxxxxxxx Rather
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Name: Xxxxxxxx Rather
Title: Managing Member
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