Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of August 23, 1999, by and among SpectraSite Communications,
Inc., a Delaware corporation (the "Borrower"), SpectraSite Holdings, Inc., a
Delaware corporation ("Holdco"), CIBC World Markets Corp. (f/k/a CIBC
▇▇▇▇▇▇▇▇▇▇▇ Corp.) and Credit Suisse First Boston, as arrangers (the
"Arrangers"), Credit Suisse First Boston, as syndication agent (the "Syndication
Agent"), Canadian Imperial Bank of Commerce, as administrative agent (the
"Administrative Agent"), Canadian Imperial Bank of Commerce, as collateral agent
(the "Collateral Agent") and the other Credit Parties signatory hereto (the
"Credit Parties").
W I T N E S S E T H:
WHEREAS, the Borrower, Holdco, the Arrangers, the Syndication
Agent, the Administrative Agent, the Collateral Agent and the Credit Parties are
parties to that certain Credit Agreement dated as of April 20, 1999 (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"); and
WHEREAS, Holdco has formed a new wholly-owned Subsidiary, W
Acquisition Corp., a Washington corporation ("Acquisition Corp."); and
WHEREAS, on May 15, 1999, Holdco and Acquisition Corp. entered
into an Agreement and Plan of Merger (as in effect on the date hereof, the
"Merger Agreement") with Westower Corporation, a Washington corporation
("Westower"), pursuant to which Acquisition Corp. will merge with and into
Westower, which will then become a wholly-owned Subsidiary of Holdco (such
transaction being hereinafter referred to as the "Westower Acquisition"); and
WHEREAS, pursuant to the Merger Agreement, each existing
shareholder of Westower will receive 1.81 shares of the common stock of Holdco
in exchange for each share of the common stock of Westower owned by such
shareholder, which exchange shall result in the existing Westower shareholders
becoming the owners of approximately twenty percent (20%) of the total equity
interest of Holdco; and
WHEREAS, simultaneous with the closing of the Westower
Acquisition, Holdco will repay approximately $70,000,000 in existing
Indebtedness of Westower; and
WHEREAS, immediately following consummation of the Westower
Acquisition, Holdco desires to contribute all of its ownership interest in
Westower to the Borrower, and thereupon, Westower will become a wholly-owned
Subsidiary of the Borrower; and
WHEREAS, the Borrower desires to enter into an arrangement with
NTA, LLC, a Massachusetts limited liability company ("NTA"), pursuant to which
the Borrower will, among other things, use proceeds of the Senior Loans and/or
cash on hand to purchase an equity interest
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in, and to make certain loans to, Concourse Communications Group, L.L.C., a
Delaware limited liability company ("Newco"), which will be a joint venture
between NTA and the Borrower (the "NTA Investment"); and
WHEREAS, the Borrower and Holdco have requested, and the
Arrangers, the Syndication Agent, the Administrative Agent, the Collateral Agent
and the Credit Parties have agreed, to amend the Credit Agreement as set forth
herein in order to permit consummation of the Westower Acquisition and the NTA
Investment and the transactions contemplated in connection therewith;
NOW THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby, except as
otherwise defined or limited herein, and further agree, subject to the
conditions precedent to this Amendment hereinafter set forth, as follows:
1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions,
is hereby modified and amended by adding the following new
definitions to be placed in appropriate alphabetical order:
"'Foreign Westower Subsidiaries' shall mean the
Subsidiaries of Westower existing as of the Westower Acquisition
Date that are not organized under the laws of the United States or
any state thereof or the District of Columbia.
"'NTA' shall mean NTA, LLC, a Massachusetts limited
liability company.
"'NTA Investment' shall mean the Investment by the
Borrower in the NTA Joint Venture (including the purchase of
one-third (1/3) of the issued and outstanding equity interests of
the NTA Joint Venture and the making of certain loans to the NTA
Joint Venture) in an aggregate amount not to exceed $20,000,000.
"'NTA Investment Documents' shall mean the duly executed
documents executed in connection with the NTA Investment,
including, without limitation, copies of other consents required
to be obtained in connection with the NTA Investment and copies of
any documentation evidencing the credit facility extended to the
NTA Joint Venture by the Borrower.
"'NTA Joint Venture' shall mean Concourse Communications
Group, L.L.C., a Delaware limited liability company and a joint
venture between NTA and the Borrower.
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"'W Acquisition Corp.' shall mean W Acquisition Corp., a
Washington corporation and a wholly-owned Subsidiary of Holdco.
"'Westower' shall mean Westower Corporation, a Washington
corporation.
"'Westower Acquisition' shall mean the Acquisition of
Westower by Holdco pursuant to terms and conditions of the
Westower Merger Agreement and the subsequent transfer by Holdco to
the Borrower of all of the issued and outstanding Capital Stock of
Westower.
"'Westower Acquisition Date' shall mean the date on which
the Westower Acquisition shall be consummated.
"'Westower Merger Agreement' shall mean that certain
Agreement and Plan of Merger dated as of May 15, 1999, as amended,
among Westower, Holdco and W Acquisition Corp., and all schedules
and exhibits thereto and documents executed in connection
therewith."
(b) Article 1 of the Credit Agreement, Definitions,
is hereby further modified and amended by deleting the existing definition of
"Change of Control" and by substituting the following in lieu thereof:
"'Change of Control' shall mean any of the following:
"(i) prior to an Initial Public Offering, the
Controlling Shareholders cease to be the 'beneficial owners' (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly
or indirectly, of a majority in the aggregate of the total voting
power of the voting Capital Stock of Holdco, whether as a result
of issuance of securities of Holdco, any merger, consolidation,
liquidation or dissolution of Holdco, any direct or indirect
transfer of securities by Holdco or otherwise (for purposes of
this clause (i) and clause (ii) below, the Controlling
Shareholders shall be deemed to beneficially own any voting
Capital Stock of an entity (the 'specified entity') held by any
other entity (the 'parent entity') so long as the Controlling
Shareholders beneficially own (as so defined), directly or
indirectly, in the aggregate a majority of the voting power of the
voting Capital Stock of the parent entity); or
"(ii) subsequent to an Initial Public Offering,
any 'person' (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Controlling
Shareholders, is or becomes the beneficial owner (as defined in
clause (i) above, except that for purposes of this clause (ii)
such person shall be deemed to have 'beneficial ownership' of all
shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than thirty-five percent
(35%) of the total voting power of the voting Capital Stock of
Holdco; provided, however, that the Controlling Shareholders do
not have the right or ability by voting power, contract or
otherwise,
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to elect or designate for election a majority of the board of
directors of Holdco (for the purposes of this clause (ii), such
other person shall be deemed to beneficially own any voting
Capital Stock of a specified entity held by a parent entity, if
such other person is the beneficial owner (as defined in this
clause (ii)), directly or indirectly, of more than thirty-five
percent (35%) of the voting power of the voting Capital Stock of
such parent entity and the Controlling Shareholders 'beneficially
own' (as defined in clause (i) above), directly or indirectly, in
the aggregate a lesser percentage of the voting power of the
voting Capital Stock of such parent entity and do not have the
right or ability by voting power, contract or otherwise, to elect
or designate for election of a majority of the board of directors
of such parent entity); or
"(iii) during any period of two (2) consecutive
years (or, in the case this event occurs within the first two (2)
years after the Agreement Date, such shorter period as shall have
begun on the Agreement Date), individuals who at the beginning of
such period constituted the board of directors of Holdco (together
with any new directors whose election by such board of directors
or whose nomination for election by the shareholders of Holdco was
approved by a vote of a majority of the directors of Holdco then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously
so approved) cease for any reason to constitute a majority of the
board of directors of Holdco then in office; or
"(iv) Holdco's merger or consolidation with or
into another Person or the merger of another Person with or into
Holdco if Holdco's securities that are outstanding immediately
prior to such transaction and which represent one hundred percent
(100%) of the aggregate voting power of Holdco's Voting Stock are
changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities
of the surviving corporation that represent immediately after such
transaction, at least a majority of the aggregate voting power of
the Voting Stock of the surviving corporation; or
"(v) the sale of all or substantially all of
Holdco's assets to another Person, other than a Controlling
Shareholder or a Person that is controlled by the Controlling
Shareholders; or
"(vi) the failure of Holdco to own and control,
free of any Lien or encumbrance other than Liens in favor of the
Collateral Agent and Permitted Liens, one hundred percent (100%)
of the issued and outstanding Capital Stock of the Borrower (other
than any Permitted High Yield Securities); or
"(vii) the failure of the Borrower to own and
control, free of any Lien or encumbrance other than Liens in favor
of the Collateral Agent and Permitted Liens, one hundred percent
(100%) of the issued and outstanding Capital Stock of Tower Sub
and each of its other Subsidiaries (other than the non-wholly
owned Subsidiaries of Westower identified on Schedule 5.1(c))."
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2. Amendments to Section 2.7.
(a) Section 2.7 of the Credit Agreement, Mandatory
Repayments, is hereby modified and amended by deleting in its entirety existing
subsection (a) and by substituting the following in lieu thereof:
"(a) Excess Cash Flow. Commencing with respect to the
fiscal year of the Borrower ended December 31, 2002, and with
respect to each fiscal year thereafter during the term of this
Agreement, on or prior to the Excess Cash Flow Recapture Date with
respect to each such fiscal year, the Borrower shall make a
prepayment of the outstanding principal amount of the Senior Loans
in an amount equal to seventy-five percent (75%) of Excess Cash
Flow for such fiscal year; provided, however, that, in the event
that the Borrower shall have maintained a Leverage Ratio less than
or equal to 4.00 to 1.00 for two (2) consecutive fiscal quarters,
the amount of the prepayment due under this Section 2.7(a) shall
at all times thereafter be reduced to fifty percent (50%) of
Excess Cash Flow. The amount of any prepayment made by the
Borrower pursuant to this Section 2.7(a) shall be applied to
prepay the Senior Loans as set forth in Section 2.7(e) below."
(b) Section 2.7 of the Credit Agreement, Mandatory
Repayments, is hereby further modified and amended by deleting in its entirety
existing subsection (c) and by substituting the following in lieu thereof:
"(c) Debt or Equity Issuance. If, after the Agreement
Date, (i) Holdco shall conduct any public or private issuance of
any Funded Debt or any Convertible Securities (other than the
issuance of the Holdco 2009 Notes in an amount not to exceed
$340,003,656) (each a "Debt Offering"), or (ii) the Borrower or
Holdco shall issue any Capital Stock or other equity interests
(other than any Convertible Securities) in the Borrower or Holdco
(other than from the issuance of (A) any Permitted High-Yield
Securities which are equity securities to the extent that such Net
Proceeds shall be used to repay the Tranche C Loans as permitted
by Section 2.5(b)(i) hereof, (B) such Capital Stock or other
equity interests to any Shareholder or Affiliate thereof, (C) any
Capital Stock of Holdco issued to existing shareholders of
Westower in connection with the Westower Acquisition, or (D) the
issuance by Holdco of its common stock in connection with a public
offering of its primary shares completed within one (1) year after
the Agreement Date) (each an "Equity Offering"), the Borrower
shall prepay the Senior Loans as follows:
"(i) In the event that the Leverage Ratio on a
pro forma basis after giving effect to any Debt Offering
shall be greater than 4.00 to 1.00, an amount up to one
hundred percent (100%) of the Net Proceeds received by
Holdco with respect to such Debt Offering shall be
applied, on the date of receipt of the Net Proceeds of
such Debt Offering by Holdco, by the Borrower to prepay
the Senior Loans as set forth in Section 2.7(e) hereof, to
the extent
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necessary to cause the Leverage Ratio to be less than or
equal to 4.00 to 1.00 after giving effect to such Debt
Offering.
"(ii) In the event that the Leverage Ratio on a
pro forma basis after giving effect to any Equity Offering
shall be greater than 4.00 to 1.00, an amount up to fifty
percent (50%) of the excess, if any, of (A) the aggregate
amount of Net Proceeds received by the Borrower or Holdco,
as applicable, in respect of Equity Offerings conducted
during the term of this Agreement, over (B) $250,000,000,
shall be applied, on the date of receipt thereof, to
prepay the Senior Loans, as set forth in Section 2.7(e),
to the extent necessary to cause the Leverage Ratio to be
less than or equal to 4.00 to 1.00 after giving effect to
such Equity Offering."
3. Amendments to Article 5.
(a) Section 5.1(c) of the Credit Agreement, Capital
Stock, Corporate Organization and Related Matters, is hereby deleted and the
following substituted in lieu thereof:
"(c) Capital Stock, Corporate Organization and Related
Matters. As of the Agreement Date, after giving effect to the
Nextel Acquisition, the capitalization of Holdco will be as set
forth on Schedule 5.1(c) hereof. Holdco owns all of the issued and
outstanding Capital Stock of the Borrower, and except as set forth
on Schedule 5.1(c), the Borrower owns all of the issued and
outstanding Capital Stock of each of its Subsidiaries and has the
unrestricted right to vote such Capital Stock owned by it. As of
the Westower Acquisition Date, the Borrower will not have any
Subsidiaries other than the Subsidiaries listed on Schedule 5.1(x)
attached hereto. All of the issued and outstanding shares of
Capital Stock of the Borrower and its Subsidiaries have been duly
authorized and validly issued and are fully paid and
nonassessable, and are free and clear of all Liens (except for
Permitted Liens). None of such Capital Stock has been issued in
violation of the Securities Act, or the securities, "Blue Sky" or
other Applicable Laws of any applicable jurisdiction. As of the
Westower Acquisition Date, except as set forth on Schedule 5.1(c),
none of Holdco, the Borrower or any of the Borrower's Subsidiaries
has outstanding any stock or securities convertible into or
exchangeable for any shares of its Capital Stock, nor are there
any preemptive or similar rights to subscribe for or to purchase,
or any other rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the
issuance (contingent or otherwise) of, or any calls, commitments,
or claims of any character relating to, any of such Capital Stock
or any stock or securities convertible into or exchangeable for
any of such Capital Stock. As of the Westower Acquisition Date,
except as set forth on Schedule 5.1(c), none of Holdco, the
Borrower or any of the Borrower's Subsidiaries is subject to any
obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its Capital Stock or to register
any shares of its Capital Stock, and there are no agreements
restricting the transfer of any shares of Capital Stock of any of
Holdco, the Borrower or any of the Borrower's Subsidiaries or
restricting the ability
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of any Subsidiary of the Borrower from making distributions,
dividends or other Restricted Payments to the Borrower. Except as
set forth on Schedule 5.1(c), within the five (5) year period
immediately preceding the Agreement Date, neither the Borrower nor
any of its Subsidiaries (other than Westower and its Subsidiaries
existing as of the Westower Acquisition Date) has changed its name
nor has the Borrower or any of its Subsidiaries (other than
Westower and its Subsidiaries existing as of the Westower
Acquisition Date) transacted business under any other name or
trade name."
(b) Section 5.1(h) of the Credit Agreement, Title to
Assets, is hereby deleted and the following substituted in lieu thereof:
"(h) Title to Assets. Holdco, the Borrower and the
Borrower's Subsidiaries each has good and legal title to, or a
valid leasehold interest in, all of its respective Assets, and
none of such Assets is subject to any Liens, except for Permitted
Liens. Except for financing statements evidencing Permitted Liens,
no financing statement under the Uniform Commercial Code as in
effect in any jurisdiction and no other filing which names Holdco,
the Borrower or any of the Borrower's Subsidiaries as debtor, or
which covers or purports to cover any of the Assets of the
Borrower or any of the Borrower's Subsidiaries, is currently
effective and on file in any state or other jurisdiction, and none
of Holdco, the Borrower or any of the Borrower's Subsidiaries has
signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any
such financing statement or filing. As of the Westower Acquisition
Date, except as set forth on Schedule 5.1(h), none of Holdco, the
Borrower or any of the Borrower's Subsidiaries is a party to any
contract, instrument or agreement (including, without limitation,
any of the Necessary Authorizations) restricting the ability of
Holdco, the Borrower or such Subsidiary, as applicable, to enter
into an agreement by which Holdco, the Borrower or such
Subsidiary, as applicable, agrees that it shall not create,
assume, incur or permit to exist or be created, directly or
indirectly, any Lien on its Assets. Tower Sub does not own any
material Assets other than Tower Assets comprising the Nextel
Collateral and Tower Space Lease Agreements with Co-Locators on
Towers comprising the Nextel Collateral, and Holdco does not own
any material Assets other than the Capital Stock of the Borrower
and, prior to consummation of the Westower Acquisition, the
Capital Stock of W Acquisition Corp. and Westower."
(c) Section 5.1(i) of the Credit Agreement,
Litigation, is hereby deleted and the following substituted in lieu thereof:
(i) Litigation. As of the Westower Acquisition Date,
except as set forth on Schedule 5.1(i) attached hereto, there is
no material action, suit, application, complaint, petition,
revocation, proceeding or investigation, at law or in equity, or
any material order, decree or judgment, in effect or pending
against, or, to the best of the Borrower's knowledge, threatened
against Holdco, the Borrower or any of the Borrower's Subsidiaries
or any of their respective properties and Assets (including,
7
without limitation, any Necessary Authorization or any Tower
Assets) in any court or before any arbitrator of any kind or
before or by any governmental body (including, without limitation,
the FCC and/or the FAA). No action, suit, proceeding or
investigation, at law or in equity, or any material order, decree
or judgment, in effect or pending against, or, to the best of the
Borrower's knowledge, threatened against Holdco, the Borrower or
any of the Borrower's Subsidiaries or any of their respective
properties and Assets (including, without limitation, any
Necessary Authorization or any Tower Assets) in any court or
before any arbitrator of any kind or before or by any governmental
body (including, without limitation, the FCC and/or the FAA) (i)
calls into question the validity of this Agreement or any of the
other Loan Documents, (ii) if determined adversely to Holdco, the
Borrower or any of the Borrower's Subsidiaries, could reasonably
be expected to have a Materially Adverse Effect, or (iii) could
restrict in any material manner the ownership, operation or
license status of any Material Towers."
(d) Section 5.1(m) of the Credit Agreement, ERISA,
is hereby deleted and the following substituted in lieu thereof:
"(m) ERISA. Each Plan maintained, or contributed to, by
the Borrower or any of its Subsidiaries, or any of their ERISA
Affiliates, as of the Westower Acquisition Date is listed on
Schedule 5.1(m) attached hereto. Each of such Plans is in
compliance in all material respects with their terms, ERISA and
the Code. None of such Plans has a material 'accumulated funding
deficiency' within the meaning of ERISA or the Code. Neither the
Borrower nor any of its Subsidiaries nor any of their respective
ERISA Affiliates has incurred any material liability to the PBGC
(other than the payment of premiums imposed by Title IV of ERISA)
in connection with any such Plan. The assets of each such Plan
which is subject to Title IV of ERISA are sufficient to provide
the benefits under such Plan if such Plan were terminated on the
date hereof. No Reportable Event has occurred with respect to any
such Plan. No party in interest, fiduciary, trustee or
administrator of any such Plan or trust created thereunder has
engaged in a 'prohibited transaction' (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would
subject the Borrower, its Subsidiaries or any of their respective
ERISA Affiliates to a material tax on 'prohibited transactions'
imposed by Section 4975 of the Internal Revenue Code. No party in
interest, fiduciary, trustee or administrator of any such Plan or
trust created thereunder has committed a material breach of its
fiduciary duty or knowingly participated in any violation of ERISA
which would subject the Borrower, its Subsidiaries, or any of
their respective ERISA Affiliates to a material penalty under
Section 502 of ERISA. As of the Agreement Date, none of the
Borrower, its Subsidiaries or any of their respective ERISA
Affiliates is a participant in or obliged to make any payment to a
Multiemployer Plan. As of the Agreement Date, except as required
by Sections 601 through 609 of ERISA, neither the Borrower nor any
of its Subsidiaries has made any oral or written commitments to
provide post-employment health or life insurance coverage with
respect to any former or current employee. The Borrower and its
Subsidiaries and ERISA Affiliates have properly classified
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individuals providing services to the Borrower or any of its
Subsidiaries or ERISA Affiliates as employees or non-employees,
except to the extent that a misclassification would not result in
a Materially Adverse Effect."
(e) Section 5.1(s) of the Credit Agreement,
Agreements with Affiliates and Management Agreements, is hereby deleted and the
following substituted in lieu thereof:
"(s) Agreements with Affiliates and Management Agreements.
As of the Westower Acquisition Date, except as set forth on
Schedule 5.1(s) attached hereto, none of Holdco, the Borrower nor
any of the Borrower's Subsidiaries has (i) any material written
agreements or binding arrangements of any kind with any Affiliate
or (ii) any material management or consulting agreements of any
kind, not entered into in the ordinary course of business."
(f) Section 5.1(u) of the Credit Agreement, Payment
of Wages; Labor Matters, is hereby deleted and the following substituted in lieu
thereof:
"(u) Payment of Wages; Labor Matters. The Borrower and
each of its Subsidiaries are in compliance with the Fair Labor
Standards Act, as amended, in all material respects, and the
Borrower and each of its Subsidiaries have complied in all
material respects with all minimum and overtime wage requirements
applicable to their respective employees. As of the Westower
Acquisition Date, except as disclosed on Schedule 5.1(u): (i) no
labor contract to which the Borrower or any of its Subsidiaries is
a party or is otherwise subject is scheduled to expire during the
term of this Agreement; (ii) neither the Borrower nor any of its
Subsidiaries has, within the two (2) year period immediately
preceding the Agreement Date, taken any action which would have
constituted or resulted in a 'plant closing' or 'mass layoff'
within the meaning of the Federal Worker Adjustment and Retraining
Notification Act of 1988 or any similar applicable federal, state
or local law, and the Borrower does not have any reasonable
expectation that it will incur any material liability under such
Act at any time during the term of this Agreement; (iii) all of
the operations of the Borrower and its Subsidiaries are conducted
in all material respects in compliance with all applicable rules
and regulations promulgated by the Occupational Safety and Health
Administration of the United States Department of Labor; and (iv)
as of the Westower Acquisition Date, (A) neither the Borrower nor
any of its Subsidiaries is a party to any material labor dispute
(other than any immaterial disputes with the Borrower's or such
Subsidiary's employees as individuals and not affecting the
Borrower's or such Subsidiary's relations with any labor group or
its workforce as a whole) and (B) there are no pending or, to the
Borrower's knowledge, threatened strikes or walkouts relating to
any labor contracts to which the Borrower or any of its
Subsidiaries is a party or is otherwise subject. As of the
Westower Acquisition Date, none of the employees of the Borrower
or any of its Subsidiaries is a party to any collective bargaining
agreement with the Borrower or any of its Subsidiaries."
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(g) Section 5.1(x) of the Credit Agreement,
Investments, is hereby deleted and the following substituted in lieu thereof:
"(x) Investments. As of the Westower Acquisition Date,
none of Holdco, the Borrower or any of the Borrower's Subsidiaries
owns any Capital Stock, partnership interests or other securities
of, or equity interests in, or has outstanding loans or advances
to, or guaranties of the obligations of, any Person except as
reflected in the Financial Statements, or disclosed on Schedule
5.1(c) or Schedule 5.1(x) attached hereto."
(h) Section 5.1(y) of the Credit Agreement, Material
Contracts, is hereby deleted and the following substituted in lieu thereof:
"(y) Material Contracts. Schedule 5.1(y) contains a
complete list, as of the Agreement Date, of each contract,
agreement or commitment (the "Material Contracts") to which the
Borrower or any of its Subsidiaries is a party which is material
to the business, financial condition, operations, prospects or
Assets of the Borrower and its Subsidiaries taken as a whole,
other than any Necessary Authorizations set forth on Schedule
5.1(f) attached hereto, and, upon the request of the Arrangers,
the Borrower will provide the Arrangers with a copy of any such
contract or agreement. Schedule 5.1(y) further identifies, as of
the Westower Acquisition Date, each Material Contract which
requires consent to the granting of a Lien in favor of the
Collateral Agent on the rights of the Borrower or any of its
Subsidiaries thereunder."
4. Amendment to Section 6.2. Section 6.2 of the Credit Agreement,
Business; Compliance with Applicable Law, is hereby deleted in its entirety and
the following substituted in lieu thereof:
"Section 6.2 Business; Compliance with Applicable Law. The
Borrower will, and will cause each of its Subsidiaries to, engage
solely in the business of the Tower Operations, the Other
Operations and in related business activities. Holdco will engage
solely in the business of holding the Capital Stock of (a) the
Borrower, and (b) prior to consummation of the Westower
Acquisition, W Acquisition Corp. and Westower. Each of Holdco and
the Borrower will, and will cause each of the Borrower's
Subsidiaries to, comply in all material respects with the
requirements of all Applicable Laws (including, without
limitation, all tower marking and lighting requirements of the FAA
and the FCC)."
5. Amendment to Section 6.9. Section 6.9 of the Credit Agreement,
Use of Proceeds, is hereby deleted in its entirety and the following substituted
in lieu thereof:
"Section 6.9 Use of Proceeds. The Borrower will use
the aggregate proceeds of all Advances (a) to finance the Nextel
Acquisition, (b) to finance the Westower Acquisition (including,
without limitation, the distribution of funds to
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Holdco to permit Holdco to repay any existing Indebtedness of
Westower), (c) to finance the NTA Investment, (d) to provide
funding for the construction/development, build-out and
Acquisition of Towers as permitted hereunder, (e) for general
corporate purposes (including, without limitation, fees and
expenses relating to the Nextel Acquisition, the Westower
Acquisition, the NTA Investment, and the transactions contemplated
by this Agreement and the other Loan Documents), and (f) for
working capital and other general corporate purposes. A portion of
each Advance of the Tranche C Loans in an aggregate amount
sufficient to make interest payments on such Advance during the
Tranche C Pre-Fund Period shall be funded on the date of such
Advance of the Tranche C Loans to the Tranche C Pre-Funded
Interest Account and made solely available for payment of interest
charges on the Tranche C Loans, and principal and interest
repayment upon the Final Maturity Date or in the event of
acceleration of the Tranche C Obligations pursuant to Section
10.3(b) hereof. No proceeds of Advances hereunder shall be used
for the purchase or carrying or the extension of credit for the
purpose of purchasing or carrying any margin stock within the
meaning of Regulations U and X of the Board of Governors of the
Federal Reserve System."
6. Amendment to Section 6.16. Section 6.16 of the Credit
Agreement, Covenants Regarding Formation of Subsidiaries and the Making of
Investments and Acquisitions, is hereby deleted and the following substituted in
lieu thereof:
"Section 6.16 Covenants Regarding Formation of
Subsidiaries and the Making of Investments and Acquisitions. At
the time of any Acquisition by the Borrower or any of its
Subsidiaries, or the formation of any new Subsidiary of the
Borrower or of any of its Subsidiaries, the Borrower will, and
will cause its Subsidiaries, as applicable, to in the case of the
formation or Acquisition of a new Subsidiary, (a) provide to the
Collateral Agent a duly executed supplement to the Subsidiary
Security Agreement for such new Subsidiary (other than any Foreign
Westower Subsidiary), together with appropriate UCC-1 financing
statements, as well as a duly executed supplement to the
Subsidiary Guaranty for such new Subsidiary (other than any
Foreign Westower Subsidiary), which shall constitute both Security
Documents and Loan Documents for purposes of this Agreement, as
well as a loan certificate for such new Subsidiary, substantially
in the form of Exhibit Z attached hereto, together with
appropriate attachments thereto; (b) pledge to the Collateral
Agent all of the Capital Stock (or other instruments or securities
evidencing ownership) of such Subsidiary or Person (other than the
Foreign Westower Subsidiaries, in which case the pledge shall be
of sixty-five percent (65%) (or in the case of Westower Highlight
Do Brazil, sixty percent (60%)) of the Capital Stock of each such
Subsidiary) which is acquired or formed, beneficially owned by the
Borrower or any of the Borrower's Subsidiaries, as the case may
be, as additional Collateral for the Senior Obligations to be held
by the Collateral Agent in accordance with the terms of the
Borrower Pledge Agreement or the Subsidiary Pledge Agreement, and
execute and deliver to the Collateral Agent all such documentation
for such pledge (including, without limitation, a supplement to
the Subsidiary Pledge
11
Agreement, original stock certificates and duly executed stock
powers) as, in the reasonable opinion of the Collateral Agent, is
appropriate; and (c) provide all other documentation, including,
without limitation, a Trademark Security Agreement or any other
security agreement covering any additional intellectual property
obtained by the Borrower or such Subsidiary (other than any
Foreign Westower Subsidiary), and one or more opinions of counsel
satisfactory to the Collateral Agent which in the reasonable
opinion of the Collateral Agent is appropriate with respect to
such Acquisition or the formation of such new Subsidiary.
Investments made by the Borrower or any of its Subsidiaries after
the Agreement Date shall also be treated as additional Collateral
and shall be subject to the provisions of appropriate Security
Documents. Any document, agreement or instrument executed or
issued pursuant to this Section 6.16 shall be a 'Loan Document'
for purposes of this Agreement. Notwithstanding anything to the
contrary contained herein, upon the reasonable request of the
Borrower, Collateral Agent may, in its sole discretion without
consultation with the Majority Lenders, release any or all the
Collateral pledged to it in connection with the NTA Investment to
the extent that such Collateral does not represent a substantial
portion of the Collateral for the Senior Loans taken as a whole."
7. Amendment to Section 7.4. Section 7.4 of the Credit Agreement,
Performance Certificates, is hereby deleted in its entirety and the following
substituted in lieu thereof:
"Section 7.4 Performance Certificates. At the time the
financial statements are furnished pursuant to Section 7.2 hereof,
a Performance Certificate:
"(a) setting forth as at the end of such fiscal quarter,
the arithmetical calculations required to establish (i) the
Applicable Margin, and (ii) whether the Borrower was in compliance
with the requirements of the Financial Covenants;
"(b) setting forth on a consolidated basis for the
Borrower and its Subsidiaries, for each such fiscal quarter, a
summary in the form of Schedule 3 to the Performance Certificate
of (i) the number and type of Towers built, acquired or sold by
the Borrower or any of its Subsidiaries during such period, (ii)
the location by state and county of any new Tower Sites not
previously reported under this Section 7.4(b), (iii) the dates of
final termination or expiration of all Tower Site Lease Agreements
and Tower Space Lease Agreements occurring during the quarter then
ended and for the immediately following quarter, (iv) a list of
all anchor tenants which are located on at least five (5) Towers
and the total number of Towers on which each such anchor tenant is
located, (v) a list of all Co-Locators which are located on at
least five (5) Towers, including the total number of Towers on
which each such Co-Locator is located and the percentage of all
Towers on which such Co-Locator is located, (vi) capacity for
additional tenants per Tower with respect to the Tower Sites of
the Borrower and its Subsidiaries as of the end of such fiscal
quarter, (vii) the Co-Location Percentage as at the end of such
quarter, and (viii) with respect to any Tower Sites leased by the
Borrower or any of its Subsidiaries which were acquired or
12
built during such quarter, whether the consent of the landlord of
such Tower Sites is required for an assignment of the Tower Site
Lease Agreement with respect thereto;
"(c) with respect to the fourth (4th) quarter of any
fiscal year only, an updated list of all of the Tower Site Lease
Agreements and Tower Space Lease Agreements of the Borrower and
its Subsidiaries as of the end of such fiscal quarter; and
"(d) stating that, to the best of his or her knowledge, no
Default or Event of Default has occurred as at the end of such
period, or, if a Default or an Event of Default has occurred,
disclosing each such Default or Event of Default and its nature,
when it occurred, whether it is continuing and the steps being
taken by the Borrower with respect to such Default or Event of
Default."
8. Amendment to Section 7.6. Section 7.6 of the Credit Agreement,
Notice of Litigation and Other Matters, is hereby modified and amended by
deleting the existing subsection (e) and by substituting the following in lieu
thereof:
"(e) (i) the maintenance of, or contribution to, by the
Borrower or any of its Subsidiaries, or any of their ERISA
Affiliates, in any Plan not listed on Schedule 5.1(m) attached
hereto, or (ii) the occurrence of any Reportable Event or a
material non-exempt 'prohibited transaction' (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) with
respect to any Plan of the Borrower or any of its Subsidiaries or
the institution or threatened institution by PBGC of proceedings
under ERISA to terminate or to partially terminate any such Plan
or the commencement or threatened commencement of any litigation
regarding any such Plan, other than litigation involving a routine
claim for benefits;"
9. Amendments to Section 8.1.
(a) Section 8.1 of the Credit Agreement,
Indebtedness, is hereby modified and amended by deleting existing subsection (c)
and by substituting the following in lieu thereof:
"(c) Capitalized Lease Obligations of the Borrower not to
exceed the aggregate principal amount of $5,000,000 at any one
time outstanding over the remainder of the term of such
obligations;"
(b) Section 8.1 of the Credit Agreement,
Indebtedness, is hereby further modified and amended by deleting existing
subsection (j) and by substituting the following in lieu thereof:
"(j) Indebtedness of the Borrower in respect of
conditional sale, rental or purchase money obligations in an
aggregate amount not to exceed $5,000,000 at any one time
outstanding;"
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10. Amendment to Section 8.4. Section 8.4 of the Credit Agreement,
Amendment and Waiver, is hereby deleted in its entirety and the following
substituted in lieu thereof:
"Section 8.4 Amendment and Waiver. Neither Holdco nor the
Borrower shall, and the Borrower shall cause each of its
Subsidiaries not to, without the prior written consent of the
Arrangers, enter into any amendment of, or agree to or accept any
waiver of, which would materially adversely affect the rights of
the Borrower and the Credit Parties, under any of them, of any of
the provisions of, (a) its organizational documents, including,
without limitation, its certificate or articles of incorporation
(other than any increase in the number of authorized shares) and
by-laws, (b) the Nextel Acquisition Documents, (c) the Indentures,
(d) the Holdco Equity Documents, (e) the Westower Acquisition
Agreement, and (f) the NTA Investment Documents."
11. Amendments to Section 8.5.
(a) Section 8.5 of the Credit Agreement, Liquidation;
Merger; Acquisition or Disposition of Assets, is hereby modified and amended by
deleting existing subsection (vii) and substituting the following in lieu
thereof:
"(vii) subject to compliance with Section 6.10 and Section
6.16 hereof, the Borrower and its Subsidiaries (other than Tower
Sub) may make Acquisitions, and Investments (including the
acquisition of Capital Stock or other equity interests in Persons
engaged in businesses similar to the Tower Operations) and form
Subsidiaries with respect thereto, subject to the following
conditions:
"(A) no Default or Event of Default shall
then exist before or after giving effect to such
Acquisition or Investment;
"(B) the aggregate Purchase Price for Tower
Assets acquired pursuant to this clause (vii) (other than
the Future Nextel Towers), (I) during any twelve (12)
month period, shall not exceed $50,000,000, and (II)
during the period from the Agreement Date through the
Tranche B Maturity Date, shall not exceed $100,000,000;
"(C) with respect to Acquisitions structured as
Tower Asset exchanges or swaps, the following restrictions
shall apply: (x) the cash outlay by the Borrower for such
Acquisition must be within the dollar limitations set
forth in the preceding clause (B); (y) the Annualized
EBITDA attributable to the Tower Assets being acquired
must be substantially similar to or greater than the
Annualized EBITDA of the Tower Assets being exchanged or
swapped; and (z) if the exchange involves more than
twenty-five (25) Towers, the Towers acquired in such
transaction must have as an anchor tenant a Nextel Tenant
or another tenant reasonably acceptable to the Majority
Lenders.
14
"(D) the Borrower shall provide to the Arrangers
and the Lenders calculations demonstrating pro forma
compliance with the Financial Covenants after giving
effect to such Acquisition; and
"(E) with respect to any Acquisition having an
aggregate Purchase Price (with respect to a single
transaction or a series of related transactions) in excess
of $20,000,000, the Borrower shall provide to the
Arrangers and the Lenders revised Projections assuming
consummation of the Acquisition and demonstrating pro
forma compliance with the Financial Covenants through the
Tranche B Maturity Date;"
(b) Section 8.5 of the Credit Agreement, Liquidation;
Merger; Acquisition or Disposition of Assets, is hereby further modified and
amended by adding the following new subsections (x) and (xi) at the end thereof:
"(x) Holdco and the Borrower may consummate the
Westower Acquisition; and
"(xi) so long as no Default or Event of Default then
exists or would be caused thereby, the Borrower may consummate the
NTA Investment; provided, however, that with respect to the
exercise by the Borrower of its options to acquire additional
equity interests in the NTA Joint Venture, the Borrower may not
acquire such additional equity interests without the prior written
consent of the Majority Lenders."
12. Amendment to Section 8.6. Section 8.6 of the Credit Agreement,
Limitation on Guaranties, is hereby deleted in its entirety and the following
substituted in lieu thereof:
"Section 8.6 Limitation on Guaranties. Neither Holdco nor
the Borrower shall, and the Borrower shall cause each of its
Subsidiaries not to, at any time Guaranty, assume, be obligated
with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than (a) under any of the
Loan Documents or as permitted under Section 8.1 hereof, (b) a
guaranty by endorsement of negotiable instruments for collection
in the ordinary course of business, (c) contingent obligations
incurred in the ordinary course of business with respect to surety
and appeal bonds, performance and return-of-money bonds and other
similar obligations, and (d) a guaranty by Holdco, the Borrower or
any of its Subsidiaries (other than Tower Sub) of the performance
obligations of the Borrower or any of its Subsidiaries."
13. Amendment to Section 8.7. Section 8.7 of the Credit Agreement,
Restricted Payments and Purchases, is hereby deleted in its entirety and the
following substituted in lieu thereof:
15
"Section 8.7 Restricted Payments and Purchases. Neither
Holdco nor the Borrower shall, and the Borrower shall cause each
of its Subsidiaries not to, directly or indirectly declare or make
any Restricted Payment or Restricted Purchase, except that, so
long as no Default or Event of Default then exists or would result
therefrom, the Borrower may make Restricted Payments to Holdco to
enable Holdco to make, and Holdco may make, (a) (i) interest
payments on the Holdco 2008 Notes and on the Holdco 2009 Notes, or
(ii) interest or dividend payments, as applicable, on Permitted
High-Yield Securities issued on or before the Agreement Date, in
each case in the case of clauses (i) and (ii), following
expiration of the Five Year PIK Period or from a Pre-Funded
Interest Account, (b) dividend or interest payments, as
applicable, on Permitted High-Yield Securities issued after the
Agreement Date, following expiration of the Five Year PIK Period,
or from a Pre-Funded Interest Account, at any time after the
Leverage Ratio shall have been less than 4.0 to 1.0 for two (2)
consecutive fiscal quarters, (c) payments when due of corporate
franchise fees and taxes owed by Holdco that are required to be
paid in cash, (d) payments, when due, of legal and accounting fees
and expenses actually incurred by Holdco that are required to be
paid in cash, and payments for costs incurred to comply with
Holdco's reporting obligations under federal or state laws,
including, without limitation, reports filed with respect to the
Securities Act, the Exchange Act or the respective rules and
regulations promulgated thereunder, (e) payments of 'Additional
Interest' (as that term is defined in the Registration Rights
Agreements entered into in connection with the Holdco 2008 Notes
and the Holdco 2009 Notes), and (f) on the Westower Acquisition
Date, repayment of any existing Indebtedness of Westower in an
aggregate amount not to exceed $70,000,000."
14. Amendment to Section 8.9. Section 8.9 of the Credit Agreement,
Corporate Name; Corporate Structure; Business, is hereby deleted in its entirety
and the following substituted in lieu thereof:
"Section 8.9 Corporate Name; Corporate Structure;
Business. Neither Holdco nor the Borrower shall, and the Borrower
shall cause each of its Subsidiaries not to, (1) change its
corporate name or corporate structure without giving the
Collateral Agent thirty (30) days' prior written notice of its
intention to do so and complying with all reasonable requirements
of the Collateral Agent in regard thereto, or (b) with respect to
the Borrower and its Subsidiaries, engage in any businesses other
than the Tower Operations and the Other Operations and activities
related or incident thereto, and with respect to Holdco, engage in
any business other than that of holding the Capital Stock of the
Borrower, or prior to consummation of the Westower Acquisition,
the Capital Stock of W Acquisition Corp. or Westower, or in each
case, make any material change in any of their respective business
objectives, purposes and operations."
15. Amendment to Section 13.18. Section 13.18 of the Credit
Agreement, Confidentiality, is hereby deleted in its entirety and the following
substituted in lieu thereof:
16
"Section 13.18 Confidentiality. All agreements,
instruments, documents and other information received pursuant to
this Agreement or any other Loan Document by the Credit Parties
shall be held in confidence by the Credit Parties, except for
disclosures made (a) in connection with assignments of or
participations in the Loans made pursuant to Section 13.5 hereof
(provided that such assignees or participants shall agree in
writing to keep such information confidential as provided herein),
(b) as otherwise required to be disclosed by banking regulations,
process of law or other Applicable Law, or to government
regulators, (c) of information received by a Credit Party without
restriction as to its disclosure or use from a Person who, to such
Credit Party's knowledge or reasonable belief, was not prohibited
from disclosing it by any duty of confidentiality, (d) in
connection with litigation arising from this Agreement or any
other Loan Document to which a Credit Party is a party, (v) of
information which is or has become public (other than through
unauthorized disclosure by any Credit Party), (vi) to the
attorneys, accountants, and other expert consultants (including
rating agencies) for any Credit Party (who shall be requested to
similarly hold such information in confidence), (vii) to any
direct or indirect contractual counterparty of a Lender in
connection with a swap agreement or such contractual
counterparty's professional advisor so long as such contractual
counterparty or professional advisor, as the case may be, agrees
in writing to be bound by the provisions of this Section 13.18,
(viii) to the National Association of Insurance Commissioners or
any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's
investment portfolio in connection with ratings issued with
respect to such Lender, or (ix) as otherwise permitted hereunder."
16. Amendments to Schedules to the Credit Agreement. The following
schedules to the Credit Agreement shall be deemed amended as of the Westower
Acquisition Date:
(a) Schedule 5.1(c) to the Credit Agreement,
Capitalization, is hereby modified and amended by deleting the existing schedule
in its entirety and by substituting Schedule 5.1(c) attached hereto in lieu
thereof.
(b) Schedule 5.1(i) to the Credit Agreement,
Litigation, is hereby modified and amended by deleting the existing schedule in
its entirety and by substituting Schedule 5.1(i) attached hereto in lieu
thereof.
(c) Schedule 5.1(m) to the Credit Agreement, ERISA,
is hereby modified and amended by deleting the existing schedule in its entirety
and by substituting Schedule 5.1(m) attached hereto in lieu thereof.
(d) Schedule 5.1(s) to the Credit Agreement,
Agreements with Affiliates, is hereby modified and amended by deleting the
existing schedule in its entirety and by substituting Schedule 5.1(s) attached
hereto in lieu thereof.
17
(e) Schedule 5.1(x) to the Credit Agreement,
Investments, is hereby modified and amended by deleting the existing schedule in
its entirety and by substituting Schedule 5.1(x) attached hereto in lieu
thereof.
17. No Other Amendments, Waivers or Consents. Except for the
amendments set forth above, the text of the Credit Agreement and the other Loan
Documents shall remain unchanged and in full force and effect, and the
Arrangers, the Syndication Agent, the Administrative Agent, the Collateral Agent
and the Credit Parties hereby reserve the right to require strict compliance
with the terms of the Credit Agreement and the other Loan Documents, including,
without limitation, all terms applicable to Subsidiaries of the Borrower, in the
future.
18. Acceptance of Westower Anchor Tenants. The Arrangers hereby
acknowledge and agree that each anchor tenant designated with respect to a New
Tower acquired in connection with the Westower Acquisition as set forth on
Exhibit A attached hereto shall be deemed to be an acceptable anchor tenant with
respect to such New Tower for purposes of determining the Borrowing Base Amount.
19. Conditions Subsequent. As a condition subsequent to the
amendments and consents set forth in this Amendment, the Borrower shall perform
or cause to be performed the following (the failure by the Borrower to so
perform or cause to be performed for any reason (other than (x) with respect to
the conditions set forth in clause (a) below, the fact that the Westower
Acquisition was not ever consummated, or (y) with respect to the conditions set
forth in clause (b) below, the fact that the NTA Investment was not ever made)
constituting an Event of Default under the Credit Agreement):
(a) Westower Acquisition.
(i) Conditions Precedent to Westower Acquisition.
Promptly after the same shall become available to the Borrower,
and in any event at least one (1) Business Day prior to the
Westower Acquisition Date, the Borrower shall deliver to the
Arrangers (A) the unaudited financial statements of Westower for
the quarter ended March 31, 1999, which shall present fairly, in
all material respects, in accordance with GAAP, the financial
position of Westower as at the end of such quarter and the results
of operations for such quarter, and for the elapsed portion of the
year ended with the last day of such quarter, subject only to
normal year-end adjustments, (B) a copy of the Merger Agreement,
together with all exhibits and schedules thereto, and (C) a
schedule setting forth, with respect to each Tower owned, operated
or managed by Westower, (I) the location and type of such Tower,
(II) whether the applicable Tower Site is owned or leased by
Westower, and if leased, the amount of the monthly ground rent and
the expiration date of the ground lease, and (III) the names of
each anchor tenant and each co-locator, and the amount of monthly
license fees payable, with respect to such Tower.
18
(ii) Westower Acquisition Collateral. On the
Westower Acquisition Date, the Borrower shall execute and deliver,
or as applicable, cause Westower to execute and deliver, to the
Collateral Agent (i) a Supplement to Subsidiary Security Agreement
executed by Westower and each of its Subsidiaries (other than the
Foreign Westower Subsidiaries), together with all appropriate
UCC-1 financing statements requested by the Collateral Agent, (ii)
a Supplement to Subsidiary Guaranty executed by Westower and each
of its Subsidiaries (other than the Foreign Westower
Subsidiaries), (iii) an amendment to the Borrower Pledge
Agreement, in form and substance reasonably satisfactory to the
Arrangers and their counsel, executed by the Borrower with respect
to the Capital Stock owned by it in Westower, and a Supplement to
Subsidiary Pledge Agreement executed by Westower and its
Subsidiaries with respect to all of the Capital Stock owned by
each of them in their respective Subsidiaries (other than the
Foreign Westower Subsidiaries, in which case the pledge shall be
with respect to sixty-five percent (65%) (or in the case of
Westower Highlight Do Brazil, sixty percent (60%)) of the Capital
Stock owned by Westower or its Subsidiaries, as the case may be),
together with original stock certificates and corresponding stock
powers duly executed in blank, (iv) an amendment and joinder to
the Trademark Security Agreement, in form and substance reasonably
satisfactory to the Arrangers and their counsel, executed by
Westower and each of its Subsidiaries (other than the Foreign
Westower Subsidiaries) owning any trademark registrations or
applications, (v) an opinion of counsel to Holdco and the
Borrower, in form and substance reasonably satisfactory to the
Arrangers and their counsel, regarding the Westower Acquisition
and the Loan Documents delivered to the Collateral Agent in
connection therewith, and (vi) a loan certificate from Westower
and each of its Subsidiaries, together with all appropriate
attachments thereto.
(b) NTA Investment.
(i) Definitive Documentation. Promptly upon the
closing of the NTA Investment, the Borrower shall deliver to the
Arrangers a full set of copies of the duly executed documents
executed in connection with the NTA Investment, including, without
limitation, copies of other consents required to be obtained in
connection with the NTA Investment and copies of any documentation
evidencing the credit facility extended to Newco by the Borrower.
(ii) Assignment of Equity Interests.
Simultaneously with the closing of the NTA Investment, the
Borrower shall pledge to the Collateral Agent all of the equity
interests of Newco acquired by the Borrower in connection with the
NTA Investment pursuant to a pledge agreement substantially
identical to the Borrower Pledge Agreement, and shall immediately
deliver all appropriate Uniform Commercial Code financing
statements required to perfect such pledge to the Collateral
Agent. The equity interests of Newco acquired by the Borrower
shall be free and clear of all Liens other than those in favor of
the Collateral Agent.
19
(iii) Assignment of Purchase Documentation and
Notes Receivable. Simultaneously with the closing of the NTA
Investment, the Borrower shall (i) execute and deliver to the
Collateral Agent a duly executed assignment all of the Borrower's
contract rights arising in respect of the documents evidencing the
NTA Investment, together with a consent to such assignment
executed by each of the other parties to the NTA Investment, and
(ii) pursuant to the Security Agreement, deliver to the Collateral
Agent all of the original notes receivable issued by Newco in
favor of the Borrower in connection with the NTA Investment
endorsed in blank.
(iv) Copies of Reports and other Information.
Promptly upon the Borrower's receipt thereof (and, in any event
within three (3) Business Days of the Borrower's receipt thereof),
the Borrower shall deliver to the Arrangers copies of all reports
and financial information provided to the Borrower by or with
respect to Newco.
20. Conditions to Effectiveness. This Amendment shall be effective
as of the date first written above (the "Effective Date") upon the following:
(a) the Administrative Agent's receipt of a
counterpart hereof duly executed by the Borrower and Holdco, and
by the Majority Lenders;
(b) with respect to the NTA Investment, the Arrangers'
receipt of an updated business plan and updated Projections for
the Borrower demonstrating the Borrower's pro forma compliance
with the Financial Covenants after giving effect to the NTA
Investment;
(c) with respect to the Westower Acquisition, the
Arrangers' receipt of an updated business plan and updated
Projections for the Borrower demonstrating the Borrower's pro
forma compliance with the Financial Covenants after giving effect
to the Westower Acquisition; and
(d) the representations and warranties of Holdco and the
Borrower set forth in the Credit Agreement and this Amendment,
other than those that are expressly made as of a specific date,
are true and correct in all material respects with the same effect
as though such representations and warranties had been made on and
as of the Effective Date.
21. Representations and Warranties. Each of the Borrower and
Holdco, for itself and on behalf of each of its Subsidiaries, agrees, represents
and warrants in favor of the Arrangers, the Syndication Agent, the
Administrative Agent, the Collateral Agent and the Credit Parties that:
(a) This Amendment has been executed and delivered by duly
authorized representatives of the Borrower and Holdco, and the
Credit Agreement, as modified
20
and amended by this Amendment, constitutes a legal, valid and
binding obligation of the Borrower and Holdco and is enforceable
against the Borrower and Holdco in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally and by the application of general equitable principles;
(b) Before and after giving effect to this Amendment, no
Default or Event of Default with respect to the Borrower or Holdco
has occurred and is continuing;
(c) As of the date hereof and after giving effect to the
Westower Acquisition, (i) the property of the Borrower, at a fair
valuation on a going concern basis, will exceed its debt; (ii) the
capital of the Borrower will not be unreasonably small to conduct
its business; and (iii) the Borrower will not have incurred debts,
or have intended to incur debts, beyond its ability to pay such
debts as they mature;
(d) No event contemplated in connection with the Westower
Acquisition or the NTA Investment shall occur, which has not been
consented to or waived, the occurrence of which constitutes, or
with the passage of time or giving of notice or both would
constitute, a material default by Holdco, the Borrower or any of
their respective Subsidiaries under any material indenture,
agreement or other instrument, including, without limitation, the
material Necessary Authorizations and the Indentures, or any
judgment, decree or order, to which Holdco, the Borrower or any of
their respective Subsidiaries is a party or by which Holdco, the
Borrower or any of their respective Subsidiaries or any of their
respective properties may be bound or affected; and
(e) All of the representations and warranties of Holdco
and the Borrower contained in the Credit Agreement (other than
representations and warranties that relate solely to a specified
date) continue to be true and correct in all material respects as
of the date hereof as though made on and as of such date.
22. Effect on the Credit Agreement. Except as specifically
provided herein, the Credit Agreement shall remain in full force and effect, and
is hereby ratified, reaffirmed and confirmed. This Amendment shall be deemed to
be a Loan Document for all purposes.
23. Counterparts. This Amendment may be executed in any number of
separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
21
24. Law of Contract. THIS CONSENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
22
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first written above.
BORROWER: SPECTRASITE COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President, Chief
Financial Officer and Secretary
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HOLDCO: SPECTRASITE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President, Chief
Financial Officer and Secretary
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
ADMINISTRATIVE
AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director, CIBC World
Markets Corp., as Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
ARRANGERS: CIBC WORLD MARKETS CORP.
(f/k/a CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp.)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
COLLATERAL AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director, CIBC World
Markets Corp., as Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
SYNDICATION AGENT: CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
MANAGING AGENTS: BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
CO-AGENT: CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
LENDERS: CIBC INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director, CIBC World
Markets Corp., as Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
By: /s/ ▇▇▇▇ ▇'▇▇▇▇
Name: ▇▇▇▇ ▇'▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
TORONTO DOMINION (TEXAS), INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
UNION BANK OF CALIFORNIA, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director, CIBC World
Markets Corp., as Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:
Name:
Title:
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
KZH CYPRESSTREE-1 LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Authorized Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE
FUND, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
PPM AMERICA, INC., as attorney in fact,
on behalf of
▇▇▇▇▇▇▇ National Life Insurance Company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
▇.▇. ▇▇▇▇▇▇▇ MARKET VALUE FUND, L.P.
By: ▇.▇. ▇▇▇▇▇▇▇ Value GP, Ltd.,
its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Managing Member
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
▇.▇. ▇▇▇▇▇▇▇ MEZZANINE FUND, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Managing Member
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
DEBT STRATEGIES FUND II, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
DEBT STRATEGIES FUND III, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By: /s/ ▇. ▇. ▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
