EXECUTION COPY
================================================================================
EXHIBIT 10.64
TERM LOAN AGREEMENT
dated as of
March 15, 1999
among
CROWN CASTLE INTERNATIONAL CORP.
as Borrower,
____________________
THE LENDERS named herein,
____________________
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS ▇.▇.
▇▇▇▇▇▇▇ BROTHERS HOLDING COMPANY INC.
and
CREDIT SUISSE FIRST BOSTON,
as Arrangers
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS............................................................................................1
Section 1.1. Defined Terms........................................................................................1
Section 1.2. Interpretation......................................................................................22
ARTICLE II. THE CREDIT FACILITY..................................................................................22
Section 2.1. Commitments to Make Term Loans......................................................................22
Section 2.2. Option to Exchange Term Loans for Exchange Notes....................................................22
Section 2.3. Interest; Default Interest..........................................................................23
Section 2.4. Mandatory Prepayment................................................................................24
Section 2.5. Optional Prepayment.................................................................................25
Section 2.6. Breakage Costs; Indemnity...........................................................................26
Section 2.7. Effect of Notice of Prepayment......................................................................26
Section 2.8. Payments............................................................................................26
Section 2.9. Taxes...............................................................................................28
Section 2.10. Right of Set Off; Sharing of Payments, Etc.........................................................31
Section 2.11. Certain Fees.......................................................................................32
ARTICLE III. REPRESENTATIONS AND WARRANTIES......................................................................32
Section 3.1. Acquisition Agreements..............................................................................32
Section 3.2. Organization; Powers................................................................................33
Section 3.3. Due Authorization and Enforceability................................................................33
Section 3.4. No Conflicts; No Consents...........................................................................33
Section 3.5. No Violations; Material Contracts...................................................................34
Section 3.6. Capital Stock; Subsidiaries.........................................................................34
Section 3.7. Liens...............................................................................................34
Section 3.8. Governmental Regulations............................................................................34
Section 3.9. [Reserved.].........................................................................................34
Section 3.10. Financial Statements; No Undisclosed Liabilities...................................................34
Section 3.11. Full Disclosure....................................................................................36
Section 3.12. Private Offering; Rule 144A Matters................................................................36
Section 3.13. Absence of Proceedings.............................................................................37
Section 3.14. Taxes..............................................................................................37
Section 3.15. Financial Condition; Solvency......................................................................37
Section 3.16. Absence of Certain Changes.........................................................................37
Section 3.17. Year 2000 Compliance...............................................................................37
Section 3.18. Properties.........................................................................................37
Section 3.19. Permits; Registration..............................................................................38
Section 3.20. ERISA..............................................................................................38
Section 3.21. Environmental Matters..............................................................................38
Section 3.22. Available Cash for the BAM Joint Venture...........................................................39
ARTICLE IV. COVENANTS............................................................................................39
Section 4.1. Use of Proceeds.....................................................................................39
Section 4.2. Notice of Default and Related Matters...............................................................39
Section 4.3. Reports.............................................................................................39
Section 4.4. Compliance Certificate..............................................................................40
Section 4.5. Taxes...............................................................................................40
Section 4.6. Stay, Extension and Usury Laws......................................................................41
Section 4.7. Restricted Payments.................................................................................41
Section 4.8. Dividend and Other Payment Restrictions Affecting Subsidiaries......................................43
i
Section 4.9. Incurrence of Indebtedness and Issuance of Preferred Stock..........................................44
Section 4.10. Asset Sales........................................................................................46
Section 4.11. Transactions with Affiliates.......................................................................46
Section 4.12. Liens..............................................................................................47
Section 4.13. Business Activities................................................................................47
Section 4.14. Corporate Existence................................................................................47
Section 4.15. Offer to Prepay Upon a Change of Control...........................................................47
Section 4.16. Limitation on Sale and Leaseback Transactions......................................................48
Section 4.17. Limitation on Issuances and Sales of Capital Stock of Restricted Subsidiaries......................48
Section 4.18. Limitation on Issuances of Guarantees of Indebtedness..............................................49
Section 4.19. Merger; Sale of All or Substantially All Assets....................................................49
Section 4.20. Inspection Rights..................................................................................50
Section 4.21. Special Rights.....................................................................................50
ARTICLE V. CONDITIONS............................................................................................51
Section 5.1. Corporate and Other Proceedings.....................................................................51
Section 5.2. [Reserved.].........................................................................................52
Section 5.3. Absence of Certain Changes..........................................................................52
Section 5.4. Market Disruption...................................................................................52
Section 5.5. Financial Statements................................................................................52
Section 5.6. Litigation, etc.....................................................................................53
Section 5.7. Payment of Fees and Expenses........................................................................53
Section 5.8. Escrow Agreement....................................................................................53
Section 5.9. Exchange Notes......................................................................................53
Section 5.10. Registration Rights Agreement......................................................................53
Section 5.11. Delivery of Opinions...............................................................................53
Section 5.12. Solvency...........................................................................................53
Section 5.13. No Breach; No Default..............................................................................53
Section 5.14. Special Conditions.................................................................................54
ARTICLE VI. TRANSFER OF THE LOANS, THE INSTRUMENTS EVIDENCING SUCH LOANS AND THE SECURITIES; REPRESENTATIONS OF LENDERS;
PARTICIPATIONS...................................................................................................54
Section 6.1. Transfer of the Loans, the instruments evidencing the Loans and the Securities......................54
Section 6.2. Permitted Assignments...............................................................................54
Section 6.3. Permitted Participants; Effect......................................................................55
Section 6.4. Dissemination of Information........................................................................55
Section 6.5. Tax Treatment.......................................................................................56
Section 6.6. Replacement Securities Upon Transfer or Exchange....................................................56
Section 6.7. Register............................................................................................56
ARTICLE VII. EVENTS OF DEFAULT...................................................................................56
Section 7.1. Events of Default...................................................................................56
Section 7.2. Acceleration........................................................................................57
Section 7.3. Rights and Remedies Cumulative......................................................................58
Section 7.4. Delay or Omission Not Waiver........................................................................58
Section 7.5. Waiver of Past Defaults.............................................................................58
Section 7.6. Rights of Lenders To Receive Payment................................................................58
ARTICLE VIII.....................................................................................................58
PERMANENT SECURITIES.............................................................................................58
Section 8.1. Permanent Securities................................................................................58
ii
ARTICLE IX. TERMINATION..........................................................................................59
Section 9.1. Termination.........................................................................................59
Section 9.2. Survival of Certain Provisions......................................................................59
ARTICLE X. INDEMNITY.............................................................................................59
Section 10.1. Indemnification....................................................................................59
Section 10.2. Counsel............................................................................................60
Section 10.3. Settlement of Claims...............................................................................60
Section 10.4. Appearance Expenses................................................................................60
Section 10.5. Indemnity for Taxes, Reserves and Expenses.........................................................61
Section 10.6. Survival of Indemnification........................................................................61
Section 10.7. Liability Not Exclusive; Payments..................................................................62
ARTICLE XI. THE ADMINISTRATIVE AGENTS; THE ARRANGERS.............................................................62
Section 11.1. Appointment........................................................................................62
Section 11.2. Delegation of Duties...............................................................................62
Section 11.3. Exculpatory Provisions.............................................................................62
Section 11.4. Reliance by the Administrative Agents..............................................................62
Section 11.5. Notice of Default..................................................................................63
Section 11.6. Non-Reliance on the Administrative Agents and Other Lenders........................................63
Section 11.7. Indemnification....................................................................................64
Section 11.8. Administrative Agents, in their Individual Capacities..............................................64
Section 11.9. Successor Administrative Agents....................................................................64
Section 11.10. Successor Administrative Agent...................................................................64
ARTICLE XII. MISCELLANEOUS.......................................................................................65
Section 12.1. Expenses; Documentary Taxes........................................................................65
Section 12.2. Notices............................................................................................65
Section 12.3. Consent to Amendments and Waivers..................................................................66
Section 12.4. Parties............................................................................................67
Section 12.5. New York Law; Submission to Jurisdiction; Waiver of Jury Trial.....................................67
Section 12.6. Replacement Notes..................................................................................67
Section 12.7. Appointment of Agent For Service...................................................................67
Section 12.8. Marshalling; Recapture.............................................................................67
Section 12.9. Limitation of Liability............................................................................68
Section 12.10. Independence of Covenants.........................................................................68
Section 12.11. Currency Indemnity................................................................................68
Section 12.12. Waiver of Immunity................................................................................68
Section 12.13. Freedom of Choice................................................................................68
Section 12.14. Successors and Assigns...........................................................................69
Section 12.15. Merger...........................................................................................69
Section 12.16. Severability Clause..............................................................................69
Section 12.17. Representations, Warranties and Agreements To Survive Delivery...................................70
Exhibits:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Term Note
Exhibit C Form of Registration Rights Agreement
Exhibit D Form of Escrow Agreement
Exhibit E Form of Exchange Note Indenture
Exhibit F-1 Opinion of Cravath, Swaine & ▇▇▇▇▇
iii
Exhibit F-2 Opinion of ▇▇▇▇▇▇ ▇▇▇▇
Exhibit F-3 Opinion of General Counsel
Schedules:
Schedule 3.10(a) Consolidated Balance Sheet and Consolidated
Statements of Income and Cash Flows of the Borrower
Schedule 3.10(b) Statement of Net Assets and Statements of Revenues
and Direct Expenses of the ▇▇▇▇ Atlantic Mobile Tower
Operations
Schedule 3.10(c) Consolidated Balance Sheet and Statement of Revenues and
Direct Expenses of the operations acquired pursuant to the
Powertel Acquisition
Schedule 3.10(d) Unaudited Statement of Income of the assets acquired
pursuant to the ▇▇▇▇ South Letter Agreement
Schedule 3.10(e) Pro Forma Consolidated Balance Sheet and Consolidated
Statements of Income and Cash Flows of the Borrower
Schedule 3.13 Absence of Proceedings
iv
THIS TERM LOAN AGREEMENT, dated as of March 15, 1999 (as amended,
restated and/or otherwise modified from time to time, this "Agreement"), is by
and among:
(a) Crown Castle International Corp., a Delaware corporation (the
"Borrower"), and
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., Salomon Brothers Holding
Company Inc. and Credit Suisse First Boston, as arrangers (the
"Arrangers").
The parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition Agreements" means the Formation Agreement, the ▇▇▇▇ South
Letter Agreement and the Powertel Acquisition Agreement.
"Acquisition Escrow Payments" means the Powertel Escrow Payment and
the ▇▇▇▇ South Escrow Payment.
"Acquisitions" means the Powertel Acquisition and the ▇▇▇▇ South
Lease.
"Adjusted Consolidated Cash Flow" has the meaning given to such term
in the definition of "Debt to Adjusted Consolidated Cash Flow Ratio."
"Administrative Agents" means Salomon Brothers Holding Company Inc.
and Credit Suisse First Boston, acting as co-administrative agents pursuant to
Article XI, or any successor or replacement Administrative Agent in accordance
therewith, acting in such capacity.
"Affected Party" means any Lender, any Lender's LIBOR Lending Office,
any beneficial owner of any Lender, and their respective successors and assigns.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that for
purposes of Section 4.11, beneficial ownership of 10% or more of the Voting
Stock of a
1
Person shall be deemed to be control. Neither the Lenders nor any of their
Affiliates will be treated as an Affiliate of the Borrower or any of its
Subsidiaries for purposes of this Agreement.
"Agreement" has the meaning specified in the preamble to this
Agreement, as the same may be amended or supplemented from time to time.
"Anniversary Date" means the first anniversary of the Closing Date, or
the next Business Day if such date is not a Business Day.
"Arrangers" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., Salomon Brothers
Holding Company Inc. and Credit Suisse First Boston, acting as arrangers in
connection with the Term Loans.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition of any assets or rights (including, without limitation, by way of a
sale and leaseback) provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Borrower and its
Subsidiaries taken as a whole will be governed by the provisions of Section 4.15
and/or the provisions described in Section 4.19 and not by the provisions of
Section 4.10, and (ii) the issue or sale by the Borrower or any of its
Restricted Subsidiaries of Equity Interests of any of the Borrower's
Subsidiaries (other than directors' qualifying shares or shares required by
applicable law to be held by a Person other than the Borrower or a Restricted
Subsidiary), in the case of either clause (i) or (ii), whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of $1.0 million or (b) for Net Proceeds in excess of $1.0
million. Notwithstanding the foregoing, the following items shall not be deemed
to be Asset Sales: (i) a transfer of assets by the Borrower to a Restricted
Subsidiary or by a Restricted Subsidiary to the Borrower or to another
Restricted Subsidiary, (ii) an issuance of Equity Interests by a Subsidiary to
the Borrower or to another Restricted Subsidiary, (iii) a Restricted Payment
that is permitted by Section 4.7, (iv) grants of leases or licenses in the
ordinary course of business and (v) disposals of Cash Equivalents.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agents, in the form of Exhibit A or such other form as shall be approved by the
Administrative Agents.
"Attributable Debt" in respect of a sale and leaseback transaction
means, at the time of determination, the present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
"BAM" means Cellco Partnership, a Delaware general partnership doing
business as ▇▇▇▇ Atlantic Mobile.
"BAM Funds" means Cash Equivalents in an aggregate amount that is
sufficient to fund the Borrower's cash obligations under the Formation Agreement
to consummate the BAM Joint Venture.
"BAM Joint Venture" means the Crown Atlantic Holding Company LLC joint
venture with BAM to be created by the Borrower through its Subsidiaries pursuant
the Formation Agreement.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
federal or state law for the relief of debtors.
2
"Base Rate" means, for any day, the sum of higher of (i) the Federal
Funds Rate for such day plus 50 basis points and (ii) the Prime Rate for such
day. Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such change in
the Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Term Loan at any time that the interest rate
thereon is computed with reference to the Base Rate.
"beneficial owner" and "beneficial ownership" each has the meaning as
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act.
"▇▇▇▇ South Commitment" means, with respect to any Lender, the amount
set forth opposite such Lender's signature on the signature pages of this
Agreement as its "▇▇▇▇ South Commitment".
"▇▇▇▇ South Escrow Payment" means the $50.0 million escrow payment by
the Borrower to ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. for the benefit of BellSouth Mobility
pursuant to the ▇▇▇▇ South Letter Agreement.
"▇▇▇▇ South Funding Date" means the date on which the conditions set
forth in Article V are satisfied or waived in accordance with Section 12.3 and
the ▇▇▇▇ South Term Loans are funded by the Lenders.
"▇▇▇▇ South Lease" means that certain long-term master lease agreement
between the Borrower and BellSouth Mobility to lease or sublease approximately
1,850 communication towers owned by BellSouth Mobility to be executed pursuant
to the ▇▇▇▇ South Letter Agreement.
"▇▇▇▇ South Letter Agreement" means the Letter Agreement dated March
5, 1999, between the Borrower and BellSouth Mobility Inc.
"▇▇▇▇ South Term Loan" means up to $50.0 million in aggregate
principal amount of Loans made by Lenders to the Borrower pursuant to Section
2.1 to be applied to the ▇▇▇▇ South Escrow Payment.
"Berkshire Group" means Berkshire Fund III, A Limited Partnership,
Berkshire Fund IV, Limited Partnership, Berkshire Investors LLC and Berkshire
Partners LLC.
"Board" means the Board of Governors of the Federal Reserve System of
the United States or any successor.
"Board of Directors" means the Board of Directors of the Borrower, or
any authorized committee of the Board of Directors.
"Borrower" has the meaning specified in the preamble to this
Agreement.
"Business Day" means each day other than a Legal Holiday.
3
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Markets Transaction" has the meaning specified in Section
2.4(a).
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership or limited
liability company, partnership or membership interests (whether general or
limited) and (iv) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (iii)
certificates of deposit and eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any lender party to the Senior Credit Facility or with any domestic
commercial bank having capital and surplus in excess of $500.0 million and a
▇▇▇▇▇▇▇▇ Bank Watch Rating of "B" or better, (iv) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above, (v)
commercial paper having the highest rating obtainable from either ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Ratings Group and in each case
maturing within six months after the date of acquisition and (vi) money market
funds at least 95% of the assets of which constitute Cash Equivalents of the
kinds described in clauses (i)-(v) of this definition.
"CCAIC" means CCA Investment Corp., a Delaware corporation and an
indirect Wholly Owned Subsidiary of the Borrower that was formed to hold the
Borrower's Equity Interests in Crown Atlantic Holding Company LLC.
"CC Investment Corp." means Crown Castle Investment Corp., a Delaware
corporation and a Wholly Owned Subsidiary of the Borrower.
"CC Investment Corp. II" means Crown Castle Investment Corp. II, a
Delaware corporation and a Wholly Owned Subsidiary of the Borrower.
"CCP Inc." means CCP Inc., a Delaware corporation and an indirect
Wholly Owned Subsidiary of the Borrower that was formed to effect the Powertel
Acquisition.
"Centennial Group" means Centennial Fund IV, L.P., Centennial Fund V,
L.P. and Centennial Entrepreneurs Fund V, L.P.
"Change of Control" means the occurrence of any of the following: (i)
the sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Borrower and its Restricted Subsidiaries,
taken as a whole, to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act) other than a Principal or a Related Party of a Principal; (ii)
the adoption of a plan relating to the
4
liquidation or dissolution of the Borrower; (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as defined above), other than the
Principals and their Related Parties, becomes the "beneficial owner" (as such
term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that
a person shall be deemed to have "beneficial ownership" of all securities that
such person has the right to acquire, whether such right is currently
exercisable or is exercisable only upon the occurrence of a subsequent
condition), directly or indirectly, of more than 50% of the Voting Stock of the
Borrower (measured by voting power rather than number of shares); provided that
transfers of Equity Interests in the Borrower between or among the beneficial
owners of the Borrower's Equity Interests and/or Equity Interests in CTSH, in
each case as of November 20, 1997, shall not be deemed to cause a Change of
Control under this clause (iii) so long as no single Person together with its
Affiliates acquires a beneficial interest in more of the Voting Stock of the
Borrower than is at the time collectively beneficially owned by the Principals
and their Related Parties; (iv) the first day on which a majority of the members
of the Board of Directors of the Borrower are not Continuing Directors; or (v)
the Borrower consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, the Borrower, in any such
event pursuant to a transaction in which any of the outstanding Voting Stock of
the Borrower is converted into or exchanged for cash, securities or other
property, other than any such transaction where (x) the Voting Stock of the
Borrower outstanding immediately prior to such transaction is converted into or
exchanged for Voting Stock (other than Disqualified Stock) of the surviving or
transferee Person constituting a majority of the outstanding shares of such
Voting Stock of such surviving or transferee Person (immediately after giving
effect to such issuance) or (y) the Principals and their Related Parties own a
majority of such outstanding shares after such transaction.
"Change of Control Offer" has the meaning specified in Section
4.15(a).
"Change of Control Payment" has the meaning specified in Section
4.15(a).
"Change of Control Payment Date" has the meaning specified in Section
4.15(a).
"Closing Date" means March 16, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, and any
regulation promulgated thereunder.
"Commitment" means, with respect to any Lender, such Lender's Powertel
Commitment and such Lender's ▇▇▇▇ South Commitment, collectively.
"Commitment Letter" means that certain letter agreement, dated as of
March 15, 1999, among the Borrower and the Arrangers.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (i)
provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was
included in computing such Consolidated Net Income, plus (ii) consolidated
interest expense of such Person and its Restricted Subsidiaries for such period,
whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of
5
letter of credit or bankers' acceptance financings, and net payments (if any)
pursuant to Hedging Obligations), to the extent that any such expense was
deducted in computing such Consolidated Net Income, plus (iii) depreciation,
amortization (including amortization of goodwill and other intangibles and other
non-cash expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period) of
such Person and its Restricted Subsidiaries for such period to the extent that
such depreciation, amortization and other non-cash expenses were deducted in
computing such Consolidated Net Income, minus (iv) non-cash items increasing
such Consolidated Net Income for such period (excluding any items that were
accrued in the ordinary course of business), in each case on a consolidated
basis and determined in accordance with GAAP.
"Consolidated Indebtedness" means, with respect to any Person as of
any date of determination, the sum, without duplication, of (i) the total amount
of Indebtedness of such Person and its Restricted Subsidiaries, plus (ii) the
total amount of Indebtedness of any other Person, to the extent that such
Indebtedness has been Guaranteed by the referent Person or one or more of its
Restricted Subsidiaries, plus (iii) the aggregate liquidation value of all
Disqualified Stock of such Person and all preferred stock of Restricted
Subsidiaries of such Person, in each case, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person other
than the Borrower that is not a Restricted Subsidiary or that is accounted for
by the equity method of accounting shall be included only to the extent of the
amount of dividends or distributions paid in cash to the referent Person or a
Restricted Subsidiary thereof, (ii) the Net Income of any Person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition shall be excluded, (iii) the cumulative effect of a change in
accounting principles shall be excluded and (iv) the Net Income (but not loss)
of any Unrestricted Subsidiary shall be excluded whether or not distributed to
the Borrower or one of its Restricted Subsidiaries.
"Consolidated Tangible Assets" means, with respect to the Borrower,
the total consolidated assets of the Borrower and its Restricted Subsidiaries,
less the total intangible assets of the Borrower and its Restricted
Subsidiaries, as shown on the most recent internal consolidated balance sheet of
the Borrower and such Restricted Subsidiaries calculated on a consolidated basis
in accordance with GAAP.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Borrower who (i) was a member of such
Board of Directors on the date hereof, (ii) was nominated for election or
elected to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election or (iii) is a designee of a Principal or was nominated by
a Principal.
"Continuing Rate" will be determined on the Anniversary Date and will
be the greatest of the following (expressed as a percentage per annum):
(i) the interest rate borne by the Term Loans on the Business Day
immediately preceding the Anniversary Date;
6
(ii) the sum of the yield (expressed as a percentage per annum) then
in effect for United States Treasury Notes with a remaining maturity
closest to 10 years (provided, however, that if the remaining term of the
Term Loans is not equal to the constant maturity of a United States
Treasury Note for which a weekly average yield is given, such yield on
United States Treasury Notes shall be obtained by linear interpolation
(calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury Notes for which such yields are given)
plus 650 basis points; and
(iii) the sum of the ▇▇▇▇▇▇▇ Sachs Liquid High Yield Index Rate then
in effect plus 250 basis points;
provided that the rates referenced in clauses (ii) and (iii) shall be determined
two Business Days prior to the Anniversary Date.
"Continuing Interest Rate Loan" means a Term Loan at any time the
interest thereon is computed with reference to the Continuing Rate.
"Continuing Spread" means 50 basis points at all times during the
period commencing on and including the Anniversary Date and ending on the 90th
day thereafter, and increasing by 50 basis points on the 90th day after the
Anniversary Date and by an additional 50 basis points on the last day of each
90-day period thereafter for so long as any Term Loans are outstanding.
"Credit Facilities" means one or more debt facilities (including,
without limitation, the Senior Credit Facility) or commercial paper facilities
with banks or other institutional lenders providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time.
"Crown Transition Agreements" means collectively (i) the Crown
Memorandum of Understanding among the Borrower, ▇▇▇▇▇▇ ▇. Crown and ▇▇▇▇▇▇▇ ▇.
Crown, dated as of July 2, 1998, (ii) the Crown Services Agreement between the
Borrower and ▇▇▇▇▇▇ ▇. Crown, dated as of July 2, 1998 and (iii) the
Registration Rights Crown Side Letter Agreement, among the Borrower, ▇▇▇▇▇▇ ▇.
Crown and ▇▇▇▇▇▇▇ ▇. Crown, dated as of August 18, 1998.
"CTI" means Castle Transmission International Limited.
"CTI Operating Agreement" means the memorandum of understanding among
the Borrower, CTSH, CTI and TdF, dated as of August 21, 1998, relating to the
development of certain business opportunities outside of the United States and
the provision of certain business support and technical services in connection
therewith.
"CTI Services Agreement" means the amended and restated services
agreement between CTI and TdF, dated as of August 21, 1998, relating to the
provisions of certain services to CTI.
"CTSH" means Castle Transmission Services (Holdings) Ltd and its
successors.
7
"CTSH Shareholders' Agreement" means the agreement entered into by the
Borrower, CTSH and TdF, dated as of August 21, 1998, to govern the relationship
between the Borrower and TdF as shareholders of CTSH.
"Custodian" means any receiver, interim receiver, receiver and
manager, trustee, assignee, liquidator, sequestrator, custodian or similar
official under any Bankruptcy Law.
"Debt to Adjusted Consolidated Cash Flow Ratio" means, as of any date
of determination, the ratio of (a) the Consolidated Indebtedness of the Borrower
as of such date to (b) the sum of (1) the Consolidated Cash Flow of the Borrower
for the four most recent full fiscal quarters ending immediately prior to such
date for which internal financial statements are available, less the Borrower's
Tower Cash Flow for such four-quarter period, plus (2) the product of four times
the Borrower's Tower Cash Flow for the most recent quarterly period (such sum
being referred to as "Adjusted Consolidated Cash Flow"), in each case determined
on a pro forma basis after giving effect to all acquisitions or dispositions of
assets made by the Borrower and its Subsidiaries from the beginning of such
four-quarter period through and including such date of determination (including
any related financing transactions) as if such acquisitions and dispositions had
occurred at the beginning of such four-quarter period. For purposes of making
the computation referred to above, (i) acquisitions that have been made by the
Borrower or any of its Restricted Subsidiaries, including through mergers or
consolidations and including any related financing transactions, during the
reference period or subsequent to such reference period and on or prior to the
Calculation Date shall be deemed to have occurred on the first day of the
reference period and Consolidated Cash Flow for such reference period shall be
calculated without giving effect to clause (ii) of the proviso set forth in
definition of Consolidated Net Income, and (ii) the Consolidated Cash Flow
attributable to discontinued operations, as determined in accordance with GAAP,
and operations or businesses disposed of prior to Calculation Date, shall be
excluded.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable, in each case, at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the Holder
thereof, in whole or in part, on or prior to the date that is 91 days after the
date on which the Term Notes mature; provided, however, that any Capital Stock
that would constitute Disqualified Stock solely because the holders thereof have
the right to require the Borrower to repurchase such Capital Stock upon the
occurrence of a Change of Control or an Asset Sale shall not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Borrower
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.7.
"dollars" or "$" shall mean lawful money of the United States of
America.
"Eligible Indebtedness" means any Indebtedness other than (i)
Indebtedness in the form of, or represented by, bonds or other securities or any
guarantee thereof and (ii) Indebtedness that is, or may be, quoted, listed or
purchased and sold on any stock exchange, automated trading system or over-the-
counter or other securities market (including, without prejudice to the
generality of the foregoing, the market for securities eligible for resale
pursuant to Rule 144A under the Securities Act).
8
"Eligible Receivables" means the accounts receivable (net of any
reserves and allowances for doubtful accounts in accordance with GAAP) of the
Borrower and its Restricted Subsidiaries that are not more than 60 days past
their due date and that were entered into in the ordinary course of business on
normal payment terms as shown on the most recent internal consolidated balance
sheet of the Borrower and such Restricted Subsidiaries, all calculated on a
consolidated basis in accordance with GAAP.
"Engagement Letter" means that certain letter agreement, dated as of
March 15, 1999, among the Borrower, ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc. and Credit Suisse First Boston Corporation entered into in connection with
the Commitment Letter.
"Equity Interests" means the Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security that
is convertible into, or exchangeable for, Capital Stock).
"Escrow Agent" means United States Trust Company of New York, in its
capacity as escrow agent pursuant to the Escrow Agreement.
"Escrow Agreement" means the escrow agreement among the Borrower, the
Arrangers on behalf of the Lenders, and the Escrow Agent, in the form attached
as Exhibit D.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board, as in effect from time to time.
"Event of Default" means any event specified in Section 7.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Note Indenture" means, the indenture relating to the
Exchange Notes, among the Borrower, as issuer, and the Exchange Note Trustee, in
the form attached as Exhibit E, as the same may be amended or supplemented from
time to time.
"Exchange Note Trustee" means, on any date of determination, the
trustee under the Exchange Note Indenture.
"Exchange Notes" means the senior unsecured Exchange Notes of the
Borrower, placed into escrow on the Closing Date, to be issued in exchange for
certain Term Loans pursuant to Section 2.2, in the form attached as an exhibit
to the Exchange Note Indenture.
"Exchange Notice" has the meaning specified in Section 2.2(a).
"Exchange Period" means the period (i) commencing on and including the
last day of the first Interest Period to expire on a date on or after the
Anniversary Date and (ii) ending on the Maturity Date.
"Existing Indebtedness" means Indebtedness of the Borrower and its
Subsidiaries (other than Indebtedness under the Senior Credit Facility) in
existence on November 25, 1997, until such amounts are repaid.
9
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to the Lenders (in
their individual capacity) on such day on such transactions as determined by the
Administrative Agents.
"Fee Letter" means that certain Fee Letter, dated as of March 15,
1999, among the Borrower, ▇▇▇▇▇▇▇ Sachs Credit Partners L.P., Salomon Brothers
Holding Company Inc., Credit Suisse First Boston, ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc. and Credit Suisse First Boston Corporation, entered into in
connection with the Commitment Letter.
"Foreign Lender" means a Lender that is a foreign person for purposes
of the U.S. federal income tax.
"Foreign Participant" means a Participant that is a foreign person for
purposes of the U.S. federal income tax.
"Formation Agreement" means the Formation Agreement, dated as of
December 8, 1998, by and among BAM, the Transferring Partnerships (as defined
therein), the Borrower and CCAIC, pursuant to which the Borrower and BAM are to
enter into the Crown Atlantic Holding Company LLC Operating Agreement,
substantially in the form of Exhibit 3.5 thereto.
"Funding Date" means, collectively, the Powertel Funding Date and the
▇▇▇▇ South Funding Date.
"Funding Notice" has the meaning specified in Section 2.1.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the date of this Agreement.
"▇▇▇▇▇▇▇ Sachs Liquid High Yield Index Rate" means the rate (expressed
as a percentage per annum) determined by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. to represent the
weighted average of the market yields during the preceding month on high-yield
debt securities issued in minimum issue sizes of $100 million each.
"Governance Agreement" means the agreement among the Borrower, TdF and
its affiliates, dated as of August 21, 1998, to provide for certain rights and
obligations of the Borrower, TdF and its affiliates with respect to the
management of the Borrower.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
10
"Governmental Entity" means any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality thereof, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Guarantee" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, by way of a pledge of
assets or through letters of credit and reimbursement agreements in respect
thereof), of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates or currency exchange rates.
"Indebtedness" means, with respect to any Person, any indebtedness of
such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's acceptances
or representing Capital Lease Obligations or the balance deferred and unpaid of
the purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable, if
and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of such Person prepared in accordance with GAAP, as well as all Indebtedness of
others secured by a Lien on any asset of such Person whether or not such
Indebtedness is assumed by such Person (the amount of such Indebtedness as of
any date being deemed to be the lesser of the value of such property or assets
as of such date or the principal amount of such Indebtedness of such other
Person so secured) and, to the extent not otherwise included, the Guarantee by
such Person of any Indebtedness of any other Person. The amount of any
Indebtedness outstanding as of any date shall be (i) the accreted value thereof,
in the case of any Indebtedness issued with original issue discount, and (ii)
the principal amount thereof, together with any interest thereon that is more
than 30 days past due, in the case of any other Indebtedness.
"Indemnified Party" has the meaning specified in Section 10.1.
"Initial Period" means the period beginning on the Closing Date and
ending on the last day of the first Interest Period to expire on a date on or
after the Anniversary Date.
"Initial Spread" means 550 basis points at all times during the period
commencing on and including the Closing Date and ending on the 90th day
thereafter, and increasing by 50 basis points on the 90th day after the Closing
Date and by an additional 50 basis points on the last day of each 90-day period
thereafter for so long as any Term Loans are outstanding during the Initial
Period.
"Interbank Offered Rate" means, for any LIBOR Rate Loan for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100th of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered Rate" shall
mean, for any LIBOR Rate Loan for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
dollars at approximately 11:00
11
a.m. (London Time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
"Interest Payment Date" means (i) the last day of each February, May,
August and November after the Closing Date in the case of the Base Rate Loans,
(ii) the last day of each Interest Period in the case of LIBOR Rate Loans, (iii)
the 90th day after the last day of the first Interest Period to expire on a date
on or after the Anniversary Date, and the last day of each 90-day period
thereafter, in the case of Term Loans outstanding at any time during the
Exchange Period, (iv) the Maturity Date and (v) the date of any prepayment of
all or any portion of the principal of the Loans.
"Interest Period" means, in respect of any LIBOR Rate Loan, (i) in the
case of the first Interest Period applicable to the Term Loans, the period
commencing on and including the Closing Date and ending on the numerically
corresponding date (or, if there is no numerically corresponding date, on the
last date) in the calendar month that is 3 months thereafter, and (ii) in the
case of each subsequent Interest Period, the period beginning on the last day of
the prior Interest Period and ending on the numerically corresponding date (or,
if there is no numerically corresponding date, on the last date) in the calendar
month that is 3 months thereafter; provided, however, that if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended until the next succeeding Business Day unless the next Business Day
would fall in the next calendar month, in which case such Interest Period shall
end on the next preceding Business Day. Interest shall accrue from the first
day of an Interest Period to but excluding the last day of such Interest Period.
Notwithstanding the foregoing, no Interest Period in respect of the Term Loans
may extend beyond the Maturity Date and each Interest Period that would
otherwise commence before and end after the Maturity Date shall end on the
Maturity Date.
"Investment Banks" means, collectively, ▇▇▇▇▇▇▇, Sachs & Co., ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Credit Suisse First Boston Corporation.
"Investments" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP.
If the Borrower or any Restricted Subsidiary of the Borrower sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of the
Borrower or a Restricted Subsidiary of the Borrower issues any of its Equity
Interests such that, in each case, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Borrower,
the Borrower shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Equity Interests of
such Subsidiary not sold or disposed of in an amount determined as provided in
the final paragraph of Section 4.7.
"Legal Holiday" means a Saturday, a Sunday or any other day on which
banking institutions in the City of New York, or at a place of payment are
authorized by law, regulation or executive order to remain closed and, if such
day relates to a payment or prepayment of principal of, or interest on, or an
Interest Period for, LIBOR Rate Loans, any day which is also a day on which
dealings in dollar deposits are carried out in the London interbank markets.
12
"Lenders" shall mean (a) each financial institution that has executed
a counterpart to this Agreement (other than any such financial institution that
has ceased to be a party hereto pursuant to an Assignment and Acceptance) and
(b) any financial institution that has become a party hereto pursuant to an
Assignment and Acceptance.
"LIBOR Lending Office" means, with respect to any Lender, the office,
if any, of such Lender specified from time to time as its "LIBOR Lending Office"
in a written notice to the Borrower.
"LIBOR Rate" means the interest rate per annum calculated according to
the following formula:
LIBOR Rate = Interbank Offered Rate
1 LIBOR Reserve Percentage
"LIBOR Rate Loan" means a Term Loan at any time the interest rate
thereon is computed with reference to the LIBOR Rate.
"LIBOR Reserve Percentage" means, for any day, that percentage
(expressed as a decimal) which is in effect from time to time under Regulation D
or any successor regulation, as the maximum reserve requirement (including any
basic, supplemental, emergency, special, or marginal reserves) applicable with
respect to Eurocurrency Liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes deposits by reference to
which the interest rate of LIBOR Rate Loans is determined), whether or not any
Administrative Agent or any Lender has any Eurocurrency liabilities subject to
such requirements, without benefits of credits or proration, exceptions or
offsets that may be available from time to time to any Administrative Agent or
any Lender. The LIBOR Rate shall be adjusted automatically on and as of the
effective date of any change in the LIBOR Reserve Percentage.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owning pursuant
to Section 3(c) of the Registration Rights Agreement.
"Loan" means a Term Loan.
"Loan Documents" means this Agreement, the Term Notes and the Related
Documents.
"Loan Register" means the register maintained by the Administrative
Agents on behalf of the Borrower pursuant to Section 6.7.
"Majority Lenders" means, at any time, Lenders holding at least a
majority of the then aggregate unpaid principal balance of the Loans, or, if no
such principal amount is then outstanding, Lenders having at least a majority of
the total Commitments; provided that, for purposes hereof, neither the Borrower
nor any of its Affiliates shall be included in (i) the Lenders holding such
amount of the
13
Loans or having such amount of the Commitments or (ii) determining the aggregate
unpaid principal amount of the Loans or the total Commitments.
"Material Adverse Effect" means, except as otherwise specifically
stated, a material adverse effect on the condition (financial or other),
business, prospects, properties or results of operations of the Borrower and its
"significant subsidiaries" as defined in Rule 405 of the rules and regulations
of the Commission promulgated under the Securities Act, taken as a whole.
"Maturity Date" means November 30, 2007.
"Nassau Group" means Nassau Capital Partners II, L.P. and NAS Partners
I, L.L.C.
"Net Income" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain or loss,
together with any related provision for taxes on such gain or loss, realized in
connection with (a) any Asset Sale (including, without limitation, dispositions
pursuant to sale and leaseback transactions) or (b) the disposition of any
securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries and (ii) any extraordinary gain or loss, together with any related
provision for taxes on such extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the
Borrower or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
(i) the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, (ii) taxes paid or payable as
a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (iii) amounts required to be
applied to the repayment of Indebtedness (other than Indebtedness under a Credit
Facility) secured by a Lien on the asset or assets that were the subject of such
Asset Sale, (iv) all distributions and other payments required to be made to
minority interest holders in Restricted Subsidiaries as a result of such Asset
Sale, (v) the deduction of appropriate amounts provided by the seller as a
reserve in accordance with GAAP against any liabilities associated with the
assets disposed of in such Asset Sale and retained by the Borrower or any
Restricted Subsidiary after such Asset Sale and (vi) without duplication, any
reserves that the Borrower's Board of Directors determines in good faith should
be made in respect of the sale price of such asset or assets for post closing
adjustments; provided that in the case of any reversal of any reserve referred
to in clause (v) or (vi) above, the amount so reserved shall be deemed to be Net
Proceeds from an Asset Sale as of the date of such reversal.
"Non-Recourse Debt" means Indebtedness (i) as to which neither the
Borrower nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise), or (c) constitutes the lender and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Borrower or any of its Restricted Subsidiaries to declare a default on such
other Indebtedness or cause the payment thereof to be accellerated or payable
prior to its stated maturity; and (iii) as to which the lenders have been
notified in writing that they will not have any recourse to the stock or assets
of the
14
Borrower or any of its Restricted Subsidiaries (except that this clause (iii)
shall not apply to any Indebtedness incurred by CTSH and its Subsidiaries prior
to August 21, 1998).
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering Documents" means an offering memorandum or prospectus
together with such other documents, instruments and agreements as the Investment
Banks may request in their sole discretion in connection with the issuance of
the Permanent Securities.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operation Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Borrower by two Officers of the Borrower, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Borrower.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Administrative Agents. The counsel may be an
employee of or counsel to the Borrower, any Subsidiary of the Borrower or the
Administrative Agents.
"Other Taxes" has the meaning specified in Section 2.9(b).
"Other Term Loans" means up to $100 million in aggregate principal
amount of loans to CTSH or a Subsidiary thereof under a term loan agreement
among CTSH, the Arrangers and the lenders named therein, which term loan
agreement may be executed pursuant to a letter agreement substantially similar
to the Commitment Letter that may be entered into among CTSH and the Arrangers.
"Participations" has the meaning specified in Section 6.3.
"Permanent Securities" means securities to be issued by the Borrower
in connection with the Proposed Offerings to refinance the Loans.
"Permitted Business" means any business conducted by the Borrower, its
Restricted Subsidiaries or CTSH and its Subsidiaries on the date of this
Agreement and any other business related, ancillary or complementary to any such
business.
"Permitted Investments" means (a) any Investment in the Borrower or in
a Restricted Subsidiary of the Borrower; (b) any Investment in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary of the Borrower
in a Person, if as a result of such Investment (i) such Person becomes a
Restricted Subsidiary of the Borrower or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Borrower or a Restricted
Subsidiary of the Borrower; (d) any Restricted Investment made as a result of
the receipt of non-cash consideration from an Asset Sale that was made pursuant
to and in compliance with Section 4.10; (e) any acquisition of assets solely in
exchange for the issuance of Equity Interests (other than Disqualified Stock) of
the Borrower; (f) receivables created in the ordinary course of business; (g)
loans or advances to employees made in the ordinary course of business not to
exceed $1.0
15
million at any one time outstanding; (h) securities and other assets received in
settlement of trade debts or other claims arising in the ordinary course of
business; (i) purchases of additional Equity Interests in CTSH for cash pursuant
to the Governance Agreement as the same is in effect on the date of this
Agreement for aggregate cash consideration not to exceed $20 million since
November 26, 1997; and (j) other Investments in Permitted Businesses not to
exceed 5% of the Borrower's Consolidated Tangible Assets at any one time
outstanding (each such Investment being measured as of the date made and without
giving effect to subsequent changes in value).
"Permitted Liens" means (i) Liens securing Eligible Indebtedness of
the Borrower under one or more Credit Facilities that was permitted by the terms
of this Agreement to be incurred or (ii) Liens securing any Indebtedness of any
of the Borrower's Restricted Subsidiaries that was permitted by the terms of
this Agreement to be incurred; (iii) Liens in favor of the Borrower; (iv) Liens
existing on the date of this Agreement; (v) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor; (vi)
Liens securing Indebtedness permitted to be incurred under clause (iv) of the
second paragraph of Section 4.9; and (vii) Liens incurred in the ordinary course
of business of the Borrower or any Restricted Subsidiary of the Borrower with
respect to obligations that do not exceed $5.0 million at any one time
outstanding and that (a) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (b) do not in the aggregate materially detract
from the value of the property or materially impair the use thereof in the
operation of business by the Borrower or such Restricted Subsidiary.
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Borrower or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Borrower or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or initial accreted value, if applicable) of such Permitted Refinancing
Indebtedness does not exceed the principal amount of (or accreted value, if
applicable), plus accrued interest on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of expenses and
prepayment premiums incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date later than the final maturity
date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness is subordinated in right of payment to, the Notes on terms at least
as favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred either by the
Borrower or by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or agency or political subdivision thereof (including any subdivision
or ongoing business of any such entity or substantially all of the assets of any
such entity, subdivision or business).
16
"Powertel" means Powertel Atlantic Towers, LLC, Powertel Birmingham
Towers, LLC, Powertel Jacksonville Towers, LLC, Powertel Kentucky Towers, LLC,
Powertel Memphis Towers, LLC and Powertel, Inc.
"Powertel Acquisition" means the acquisition of all or substantially
all of the communications tower assets of Powertel pursuant to the Powertel
Acquisition Agreement.
"Powertel Acquisition Agreement" means that certain asset purchase
agreement between the Borrower, CCP Inc. and Powertel, dated as of March 15,
1999, with respect to the purchase of certain communications tower assets of
Powertel.
"Powertel Commitment" means, with respect to any Lender, the amount
set forth opposite such Lender's signature on the signature pages of this
Agreement as its "Powertel Commitment."
"Powertel Escrow Payment" means a $50.0 million escrow payment by the
Borrower to SunTrust Bank, N.A. for the benefit of Powertel upon execution of
the Powertel Acquisition Agreement.
"Powertel Funding Date" means the date on which the conditions set
forth in Article V are satisfied or waived in accordance with Section 12.3 and
the Powertel Term Loans are funded by the Lenders, which shall be the Closing
Date or such other date mutually agreed between the Borrower and the
Administrative Agents.
"Powertel Term Loan" means up to $50.0 million in aggregate principal
amount of Loans made by any Lender to the Borrower pursuant to Section 2.1 to be
applied to the Powertel Escrow Payment.
"Prepayment Date" has the meaning specified in Section 2.7.
"Prime Rate" means the rate of interest per annum established and
publicly announced from time to time by Credit Suisse First Boston as its prime
rate. The Prime Rate is not necessarily the best or the lowest rate of interest
offered by the Administrative Agents.
"Principals" means Berkshire Group, Centennial Group, Nassau Group,
TdF and any Related Party of the foregoing.
"Proposed Offerings" means the Borrower's proposal to issue and/or
cause one of its affiliates to issue (i) up to $300 million in gross proceeds of
debt securities or preferred stock and (ii) up to $400 million in gross proceeds
of equity securities, in each case contemplated by the Engagement Letter.
"Public Equity Offering" means an underwritten primary public offering
of common stock of the Borrower pursuant to an effective registration statement
under the Securities Act.
"Recovered Escrow Funds" means any and all amounts received by the
Borrower or any of its Subsidiaries as a distribution or payment on, or refund,
reimbursement, repayment or other recovery of, any amounts paid by the Borrower
and its Subsidiaries with respect to the Powertel Escrow Payment and/or the ▇▇▇▇
South Escrow Payment; provided that any such amounts that are given by the
Borrower or any of its Subsidiaries to Powertel or BellSouth Mobility as
consideration in connection
17
with the Powertel Acquisition or the ▇▇▇▇ South Lease, as the case may be, shall
not constitute Recovered Escrow Funds.
"Registration Rights Agreement" means the registration rights
agreement among the Borrower and the Arrangers pursuant to which the Exchange
Notes are required to be registered for public sale, in the form attached as
Exhibit C.
"Regulation D" means Regulation D of the Board as the same may be
amended or supplemented from time to time.
"Related Documents" means the Exchange Notes, the Exchange Note
Indenture, the Registration Rights Agreement, the Escrow Agreement, the
Engagement Letter and the Fee Letter.
"Related Party" with respect to any Principal means (A) any
controlling stockholder, 80% (or more) owned Subsidiary of such Principal or (B)
any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, members, partners, owners or Persons beneficially holding an 80%
or more controlling interest of which consist of such Principal and/or such
other Persons referred to in the immediately preceding clause (A).
"Request" has the meaning specified in Section 8.1(b).
"Responsible Officer" of any corporation shall mean any executive
officer or financial officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Restricted Payments" has the meaning specified in Section 4.7.
"Restricted Subsidiary" of a Person means any Subsidiary of the
referent Person that is not an Unrestricted Subsidiary.
"Rights Agreement" means the agreement between the Borrower and
ChaseMellon Shareholders Services, L.L.C., as rights agent, dated as of August
21, 1998, relating to the dividend declared by the Borrower consisting of the
right to purchase 1/1000th of a share of the Borrower's Series A Participating
Cumulative Preferred Stock, par value $.01 per share.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively, the Exchange Notes.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Facility" means that certain Amended and Restated Loan
Agreement, dated as of July 10, 1998, by and among Key Corporate Capital Inc.
and PNC Bank, National Association, as arrangers and agents for the financial
institutions listed therein, and Crown Communication Inc. and Crown Castle
International Corp. de Puerto Rico, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time.
18
"Senior Discount Notes" means the Borrower's 10-5/8% Senior Discount
Notes due 2007.
"Senior Discount Notes Indenture" means that certain Indenture, dated
as of November 25, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of
New York, as trustee, governing the Senior Discount Notes.
"Significant Subsidiary" means, with respect to any Person, any
Restricted Subsidiary of such Person that would be a "significant subsidiary" of
such Person as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Agreement, except that all references to "10 percent" in Rule 1-02(w)(1),
(2) and (3) shall mean "5 percent."
"Solvent" means, with respect to any Person on a pro forma basis
immediately after the consummation of a transaction, that (i) the fair value of
such Person's assets exceeds its stated liabilities, including all contingent
liabilities, (b) the present fair saleable value of such Person's assets exceeds
that amount that will be required to pay its probable liability on its debts as
they become absolute and mature, (c) such Person will not have incurred debts
beyond its ability to pay such debts as they mature, and (d) the then remaining
assets of such Person will not constitute an unreasonably small capital for such
Person's businesses.
"Stated Maturity" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stockholders' Agreement" means the agreement among the Borrower and
certain stockholders of the Borrower, dated as of August 21, 1998, to provide
for certain rights and obligations of the Borrower and such stockholders with
respect to the governance of the Borrower and such stockholders' shares of
Common Stock and/or Class A Common Stock of the Borrower.
"Strategic Equity Investment" means a cash contribution to the common
equity capital of the Borrower or a purchase from the Borrower of common Equity
Interests (other than Disqualified Stock), in either case by or from a Strategic
Equity Investor and for aggregate cash consideration of at least $50.0 million.
"Strategic Equity Investor" means a Person engaged in a Permitted
Business whose Total Equity Market Capitalization exceeds $1.0 billion.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
19
"Taxes" has the meaning specified in Section 2.9(a).
"TdF" means TeleDiffusion de France International S.A, or any
controlled affiliate of TdF.
"Term Loan" means, collectively, the Powertel Term Loan and the ▇▇▇▇
South Term Loan, in an aggregate principal amount not to exceed $100.0 million.
"Term Note" means a promissory note of the Borrower in the form
attached as Exhibit B hereto evidencing the Term Loan of any Lender.
"Total Equity Market Capitalization" of any Person means, as of any
day of determination, the sum of (i) the product of (A) the aggregate number of
outstanding primary shares of common stock of such Person on such day (which
shall not include any options or warrants on, or securities convertible or
exchangeable into, shares of common stock of such person) multiplied by (B) the
average closing price of such common stock listed on a national securities
exchange or the Nasdaq National Market System over the 20 consecutive business
days immediately preceding such day, plus (ii) the liquidation value of any
outstanding shares of preferred stock of such Person on such day.
"Tower Asset Exchange" means any transaction in which the Borrower or
one of its Restricted Subsidiaries exchanges assets for Tower Assets and/or cash
or Cash Equivalents where the fair market value (evidenced by a resolution of
the Board of Directors set forth in an Officers' Certificate delivered to the
Trustee) of the Tower Assets and cash or Cash Equivalents received by the
Borrower and its Restricted Subsidiaries in such exchange is at least equal to
the fair market value of the assets disposed of in such exchange.
"Tower Assets" means wireless transmission towers and related assets
that are located on the site of a transmission tower.
"Tower Cash Flow" means, for any period, the Consolidated Cash Flow of
the Borrower and its Restricted Subsidiaries for such period that is directly
attributable to site rental revenue or license fees paid to lease or sublease
space on communication sites owned or leased by the Borrower, all determined on
a consolidated basis and in accordance with GAAP. Tower Cash Flow will not
include revenue or expenses attributable to non-site rental services provided by
the Borrower or any of its Restricted Subsidiaries to lessees of communication
sites or revenues derived from the sale of assets.
"Transactions" means, collectively, the Acquisitions, the related
financing transactions and each of the other transactions contemplated by the
Transaction Documents.
"Transaction Documents" means the Loan Documents and the Acquisition
Agreements.
"Transferee" has the meaning specified in Section 6.4.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Borrower
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution; but only to the extent that such Subsidiary: (a)
has no Indebtedness other than Non-Recourse Debt; (b) is not party to any
agreement, contract, arrangement or understanding with the Borrower or any
Restricted Subsidiary
20
of the Borrower unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Borrower or such Restricted
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Borrower; (c) is a Person with respect to which neither
the Borrower nor any of its Restricted Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; (d) has not guaranteed or otherwise
directly or indirectly provided credit support for any Indebtedness of the
Borrower or any of its Restricted Subsidiaries; and (e) has at least one
director on its board of directors that is not a director or executive officer
of the Borrower or any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or executive officer of the Borrower or
any of its Restricted Subsidiaries. Any such designation by the Board of
Directors shall be evidenced to the Administrative Agents by filing with the
Administrative Agents a certified copy of the Board Resolution giving effect to
such designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by Section 4.7 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Agreement and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Borrower as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.9 hereof, the Borrower shall be in
default of such covenant). The Board of Directors of the Borrower may at any
time designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an incurrence of
Indebtedness by a Restricted Subsidiary of the Borrower of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted under Section 4.9 hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period, and (ii) no Default would occur
or be in existence following such designation. For avoidance of doubt, for
purposes of this Agreement the following Subsidiaries of the Borrower shall be
deemed as of the date hereof to be Unrestricted Subsidiaries: (i) CTSH and each
of its Subsidiaries as of the date of this Agreement; and (ii) CC Investment
Corp. and CC Investment Corp. II and each of their Subsidiaries (including CCAIC
and the BAM Joint Venture) as of the date of this Agreement.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the board of
directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"West Street" means West Street Fund I, L.L.C., an Affiliate of
▇▇▇▇▇▇▇ Sachs Credit Partners L.P.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person, 100% of the Capital Stock and other Equity Interests of which is owned
directly or indirectly by such Person.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned (i) by such Person, (ii) by one or more Wholly
21
Owned Restricted Subsidiaries of such Person or (iii) by such Person and one or
more Wholly Owned Restricted Subsidiaries of such Person.
"Year 2000 Problem" has the meaning specified in Section 3.17.
Section 1.2. Interpretation.
In this Agreement, the singular includes the plural and the plural
includes the singular; words implying any gender include the other genders;
references to any section, exhibit or schedule are to sections, exhibits or
schedules hereto unless otherwise indicated; references to statutes are to be
construed as including all statutory provisions consolidating, amending or
replacing the statute referred to; references to "writing" include printing,
typing, lithography and other means of reproducing words in a visible form;
"including" following a word or phrase shall not be construed to limit the
generality of such word or phrase; "or" is not exclusive; provisions apply to
successive events and transactions; and an accounting term not otherwise defined
has the meaning assigned to it in accordance with GAAP.
ARTICLE II.
THE CREDIT FACILITY
Section 2.1. Commitments to Make Term Loans.
In reliance upon the representations and warranties of the Borrower
set forth herein and subject to the terms and conditions herein set forth, each
of the Lenders severally agrees to make (a) a Powertel Term Loan to the Borrower
on the Powertel Funding Date in the amount of such Lender's Powertel Commitment
and (b) a ▇▇▇▇ South Term Loan to the Borrower on the ▇▇▇▇ South Funding Date in
the amount of such Lender's ▇▇▇▇ South Commitment. Not later than three
Business Days prior to a Funding Date, the Borrower shall irrevocably notify the
Administrative Agents in a written notice (a "Funding Notice") the principal
amount of Term Loans to be drawn on such Funding Date. The proceeds of each
Term Loan shall be disbursed by wire transfer on the relevant Funding Date as
provided in written instructions delivered by the Borrower to the Administrative
Agents on the Business Day prior to such Funding Date. Each Term Loan will
mature on the Maturity Date.
Section 2.2. Option to Exchange Term Loans for Exchange Notes.
(a) On any Business Day on or after the Anniversary Date (if any), any
Lender may elect to exchange all or any portion of its Term Loan for one or more
Exchange Notes by giving not less than five Business Days' prior irrevocable
written notice of such election to the Borrower, the Escrow Agent, the
Administrative Agents and the Exchange Note Trustee specifying the principal
amount of its Term Loan to be exchanged (which shall be at least $1,000,000 and
integral multiples of $1,000 in excess thereof) and subject to Section 6.1, the
name of the proposed registered holder and, subject to the terms of the Exchange
Note Indenture, the amount of each Exchange Note requested (each such notice, an
"Exchange Notice"); provided, that in no event shall the aggregate principal
amount of the Term Loans initially exchanged pursuant to this Section 2.2(a) be
less than $15,000,000. Any such exchanging Lender shall deliver its Term Notes
to the Administrative Agents within five Business Days following delivery of an
Exchange Notice. Term Notes exchanged for Exchange Notes pursuant to this
Section 2.2 shall be deemed repaid and canceled and the Exchange Notes so issued
shall be governed by and construed in accordance with the provisions of the
Exchange Note Indenture.
(b) Not later than the fifth Business Day after delivery of an
Exchange Notice:
22
(i) the Administrative Agents shall deliver to the Escrow Agent the
original Term Notes delivered to them by the exchanging Lender pursuant to
Section 2.2(a);
(ii) the Escrow Agent shall cancel each Term Note so delivered to it
and, if applicable, the Borrower shall issue a replacement Term Note to
such Lender in an amount equal to the principal amount of such Lender's
Term Loan that is not being exchanged, or the Escrow Agent shall make a
notation on the surrendered Term Note to the effect that a portion of the
Term Loan represented thereby has been repaid; and
(iii) upon completion of the actions set forth in clauses (b)(i) and
(ii) the Escrow Agent shall deliver the applicable Exchange Note(s) to the
Exchange Note Trustee for authentication and delivery to the holder or
holders thereof specified in the Exchange Notice.
(c) Each Exchange Note issued pursuant to this Section 2.2 shall bear
interest at a fixed rate equal to the rate per annum borne by the Term Loan on
the date of the Exchange Notice. Accrued interest on Term Loans so exchanged
shall be canceled and the Exchange Notes received in such exchange shall bear
interest from and including the most recent date to which interest has been paid
on the Term Loans so exchanged.
Section 2.3. Interest; Default Interest.
(a) Interest Rate Applicable to Term Loans During the Initial Period.
Subject to Sections 2.3(d) and (e) below, the unpaid principal balance of all
Term Loans outstanding at any time during the Initial Period shall accrue
interest at a rate per annum equal to the sum of the LIBOR Rate plus the Initial
Spread, changing on the first day of each Interest Period when and as the LIBOR
Rate and/or the Initial Spread changes.
(b) Interest Rate Applicable to Term Loans As Of and Following the
Anniversary Date. Subject to Sections 2.3(d) and (e) below, interest on the
unpaid principal balance of all Term Loans outstanding at any time following the
Anniversary Date shall accrue interest at a rate per annum equal to the
Continuing Rate plus the Continuing Spread, changing when and as the Continuing
Spread changes.
(c) Basis of Computation of Interest; Payment of Interest. All
interest shall be payable in arrears not later than 12:00 noon (New York City
time) on each Interest Payment Date by wire transfer of immediately available
funds in accordance with Section 2.8. All interest (i) in respect of LIBOR Rate
Loans shall be calculated for actual days elapsed on the basis of a 360-day
year, (ii) in respect of Base Rate Loans shall be calculated for actual number
of days elapsed over a year of 365 or 366 days, as the case may be, when the
Base Rate is determined by reference to the Prime Rate, and over a year of 360
days at all other times, and (iii) in respect of Continuing Interest Rate Loans
shall be calculated on the basis of a year comprised of twelve months of 30 days
each.
(d) Default Interest. Subject to Section 2.3(e) below, if an Event of
Default described in clause (a) or (b) of Section 7.1 occurs, the Borrower shall
on demand from time to time pay interest on such defaulted amount, to the extent
permitted by law, from the date such Default in the payment of interest or Event
of Default first occurred to but excluding the date of actual payment or cure or
waiver (after as well as before judgment) to the extent lawful, at a rate per
annum equal to 200 basis points in excess of the otherwise applicable interest
rate on the Loans. The Borrower shall pay such default interest and all
interest accruing on any overdue Obligation in cash on demand from time to time,
23
provided, however, that the sum of such default interest rate and rate of
interest accruing on any overdue Obligations shall not at any time exceed 16%
per annum.
(e) Maximum Interest Rate. Notwithstanding anything contained in
Section 2.3(a), 2.3(b) or 2.3(d) above, in no event shall the interest rate on
the Loans for any Interest Period exceed an annual rate equal to the lesser of
(i) 16% per annum and (ii) the maximum interest rate permitted by law.
(f) Payment of Interest and Liquidated Damages. Except as otherwise
set forth herein, interest and Liquidated Damages on each Loan shall be payable
in arrears on and to (i) each Interest Payment Date applicable to that Loan;
(ii) any prepayment of that Loan, to the extent accrued on the amount being
prepaid; (iii) at maturity, including final maturity; and (iv) if such Loan is a
Term Loan that is exchanged for an Exchange Note, the date of exchange as
specified in the relevant Exchange Notice. All interest and Liquidated Damages
payments shall be made not later than 12:00 noon (New York City time) on the
date specified for payment by wire transfer of immediately available funds in
accordance with Section 2.8.
Section 2.4. Mandatory Prepayment.
(a) The Borrower shall prepay the Loans ratably in accordance with the
aggregate outstanding principal balances thereof, with:
(1) the net cash proceeds of:
(i) any direct or indirect public offering or private placement
of the Permanent Securities, or any other debt or equity securities of
the Borrower or any of its controlled Affiliates issued after the
Closing Date (including without limitation any equity contributions
from TeleDiffusion de France International S.A.) other than (A) any
issuance of directors' qualifying shares and (B) any issuance or sale
of common stock (or common stock equivalents) of the Borrower to
officers and employees under employee benefit clients or compensation
plans";
(ii) the incurrence of any other Indebtedness by the Borrower or
any of its controlled Affiliates after the Closing Date (other than
Indebtedness permitted to be incurred under the Senior Credit Facility
pursuant to clauses (i), (iv) and (vi) of the second paragraph of
Section 4.9); and
(iii) any Asset Sale by the Borrower or any of its controlled
Affiliates after the Closing Date; provided that the following shall
not be deemed an "Asset Sale" for purposes of this covenant: (A) the
sale of any asset encumbered by Liens of third-party creditors
permitted under Section 4.12 solely to the extent that the Net
Proceeds of such Asset Sale are applied to pay the claims of such
third party creditors and (B) sales of Tower Assets in an aggregate
amount not to exceed $5.0 million during any calendar year if (y) the
Borrower advises the Administrative Agents in writing that it will
utilize the net cash proceeds of each such sale within six months of
the date of closing such sale to purchase additional Tower Assets and
(z) the Borrower in fact uses the net cash proceeds to purchase
additional Tower Assets within such six-month period,
24
(each of the transactions in the foregoing clauses (i), (ii) and (iii), a
"Capital Markets Transaction"), or
(2) all of the Recovered Escrow Funds if at any time the Borrower or
any of its Subsidiaries receives any Recovered Escrow Funds (any such
event, an "Escrow Recovery"),
(3) all of the BAM Funds if the Borrower abandons the BAM Joint
Venture or if the Formation Agreement expires or is otherwise terminated
(any such event, a "Joint Venture Termination").
Subject to Section 2.6 and Section 2.7, the Borrower shall, not later than the
fifth Business Day following any Capital Markets Transaction, Escrow Recovery or
Joint Venture Termination, apply such net cash proceeds, Recovered Escrow Funds
or BAM Funds to prepay the Loans pursuant to this Section 2.4, without premium
or penalty, by paying to each Lender an amount equal to 100% of such Lender's
pro rata share of the aggregate principal amount of the Loans to be prepaid,
plus accrued and unpaid interest thereon to the Prepayment Date.
(b) Notwithstanding the provisions of Section 2.4(a) above:
(i) in the case of any Capital Markets Transaction, the Borrower shall
be required to apply the net cash proceeds from such Capital Markets
Transaction to prepay the Loans pursuant to this Section 2.4 only after
making any repayment of amounts outstanding under the Senior Credit
Facility that are required to be made prior to the application of such net
cash proceeds to the prepayment of the Loans;
(i) in the case of any Capital Markets Transaction specified in clause
(i) of the definition thereof, to the extent that the Borrower receives any
equity contributions from TdF, the Borrower shall be required to apply the
net cash proceeds from such Capital Markets Transaction (1) first, to
prepay the Loans and Other Term Loans pursuant to this Section 2.4 in
accordance with clause (iii) below; (2) second, to permanently reduce any
remaining unfunded Commitments hereunder on a pro rata basis and (3) third,
to permanently reduce any remaining unfunded commitments under the letter
agreement with CTSH or related term loan agreement, if any, with respect to
the Other Term Loans on a pro rata basis; and
(ii) if Other Term Loans are outstanding at the time that any
mandatory prepayment is required pursuant to this Section 2.4, then the net
cash proceeds from any Capital Markets Transaction, the Recovered Escrow
Funds or the BAM Funds, as the case may be, shall be applied pro rata to
repay the principal of and accrued and unpaid interest on all Term Loans
and such Other Term Loans.
(c) Subject to and in accordance with Section 4.15, in the event of
any Change of Control, the Borrower shall offer to prepay the Loans pursuant to
Section 4.15.
Section 2.5. Optional Prepayment.
Subject to Section 2.6 and Section 2.7, the Borrower may prepay the
Loans at any time without premium or penalty, in whole or in part, on a pro rata
basis, by paying to each applicable Lender an amount equal to 100% of such
Lender's pro rata share of the aggregate principal amount of Loans to be
prepaid, plus accrued and unpaid interest thereon to the Prepayment Date.
25
Section 2.6. Breakage Costs; Indemnity.
The Borrower agrees to indemnify and hold each Affected Party harmless
from and against any loss or expense which such Affected Party sustains or
incurs as a consequence of:
(a) the failure by the Borrower to borrow LIBOR Rate Loans on the
Closing Date after the Borrower has given a notice with respect thereof in
accordance with Section 2.1,
(b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of
Section 2.4 or 2.5, as applicable, or
(c) the mandatory or optional prepayment of LIBOR Rate Loans on a day
that is not the last day of an Interest Period.
Such indemnification may include an amount equal to the excess, if any of (i)
such Affected Party's actual loss and expenses incurred (excluding consequential
damages) in connection with, or by reason of, any of the foregoing events and
(ii) the excess, if any of (A) the amount of interest that would have accrued on
the principal amount of Term Loans not so made or the principal amount of Loans
so prepaid from the date of such proposed issuance or prepayment in the case of
a failure to make Term Loans, to the last day of the Interest Period that would
have commenced on the proposed date of funding, or in the case of any such
prepayment, to the last day of the Interest Period in which such prepayment
occurred, in each case at the applicable rate of interest for such Loans
provided for herein (excluding, however, the Initial Spread or the Continuing
Spread, as the case may be, included therein, if any) over (B) the amount of
interest (as reasonably determined by such Affected Party) which would have
accrued to such Affected Party on such amount by placing such amount on deposit
for a period comparable to such Interest Period with leading banks in the
interbank LIBOR market. A certificate as to any amounts payable pursuant to
this Section 2.6 submitted to the Borrower by any Affected Party shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Obligations.
Section 2.7. Effect of Notice of Prepayment.
The Borrower shall notify the Lenders of any prepayment in writing at
their addresses shown in the Loan Register, which notice shall be given at least
five Business Days prior to any date set for prepayment of Loans (each such day,
a "Prepayment Date"). Once such notice is sent or mailed, the Loans to be
prepaid shall become due and payable on the Prepayment Date set forth in such
notice. Such notice may not be conditional.
Section 2.8. Payments.
(a) Wire Transfer. The principal of, fees, premium, if any, and
interest on each Loan and all other Obligations arising under the Loan Documents
shall be payable by wire transfer in immediately available funds (in United
States dollars) to the Administrative Agents for the respective accounts of the
Lenders set forth below their signatures on the signature pages of this
Agreement or otherwise designated in the Loan Register from time to time to the
Borrower by any Lender at least three Business Days prior to the due date
therefor.
(b) Change in Costs. If prior to the first day of any Interest Period
with respect to a LIBOR Rate Loan, any Lender shall have determined (which
determination shall be conclusive and binding upon the Borrower absent manifest
error) that: (i) by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the LIBOR Rate for
such Interest Period, or (ii) the LIBOR Rate determined or to be determined for
such Interest Period will not
26
adequately and fairly reflect the cost to such Lender or its LIBOR Lending
Office of maintaining its LIBOR Rate Loan during such Interest Period, then such
Lender shall give facsimile or telephone notice thereof to the Borrower as soon
as practicable thereafter. If such notice is given, the interest rate on each
Term Loan for such Interest Period and for each subsequent Interest Period until
such Lender gives notice to the Borrower otherwise shall equal the sum of the
Base Rate plus the Initial Spread or the Continuing Spread, as the case may be.
(c) Change in Law. Notwithstanding any other provision of this
Agreement, if any Lender shall notify the Borrower that subsequent to the date
hereof the introduction of, or any change in the interpretation of, any law or
regulation makes it unlawful, or any Governmental Entity asserts that it is
unlawful, for such Lender or its LIBOR Lending Office to make or maintain LIBOR
Rate Loans hereunder, (i) the obligation of such Lender to make or maintain
LIBOR Rate Loans shall be suspended until such Lender shall notify the Borrower
that the circumstances causing such suspension no longer exist and (ii) any
LIBOR Rate Loan then outstanding from such Lender shall immediately be converted
into a Base Rate Loan.
(d) Payments on Business Days. If any payment to be made hereunder or
under any Term Note shall be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day (and such extension of
time shall be included in computing interest in connection with such payment);
provided, however, that, in the case of a LIBOR Rate Loan, if such succeeding
Business Day falls in the next calendar month, such payment shall be made on the
next preceding Business Day.
(e) Partial Prepayments and Redemptions. All partial prepayments and
redemptions of the outstanding principal balance of the Loans shall be made
ratably amongst the applicable Lenders in accordance with their respective
shares of the aggregate outstanding principal balance of the Loans eligible for
prepayment or redemption.
(f) No Defense. To the fullest extent permitted by law, the Borrower
shall make all payments hereunder and under the Term Notes regardless of any
defense or counterclaim.
(g) Allocation. Any money paid to, received by, or collected by any
Administrative Agent or any Lender pursuant to this Agreement or any other Loan
Document, shall be applied in the following order, at the date or dates fixed by
the Administrative Agents:
First: to any unpaid fees and reimbursement or unpaid expenses of the
Arrangers (in their capacity as Administrative Agent and/or as Lender)
hereunder and under the Fee Letter;
Second: to the payment of all costs, expenses, other fees,
commissions and taxes owing to any Lender hereunder;
Third: to the indefeasible payment of all accrued interest to the
date of such payment or collection;
Fourth: to the indefeasible payment of the amounts then due and
unpaid under this Agreement, the Term Notes or any other Loan Document for
principal, in respect of which or for the benefit of which such money has
been paid or collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Term Notes for
principal; and
27
Fifth: the balance, if any, to the Person lawfully entitled thereto.
Section 2.9. Taxes.
(a) Taxes. Any and all payments by the Borrower hereunder or under
the Term Notes, the Exchange Notes or any other Loan Document shall be made, in
accordance with Section 2.8 or the other applicable provision of the applicable
Loan Document, free and clear of and without deduction or withholding for or on
account of any and all present or future taxes, levies, imports, deductions,
charges or withholdings additions to tax, interest, penalties and all other
liabilities with respect thereto, excluding (i) income, franchise or similar
taxes imposed or levied on the Administrative Agents or the Lenders as a result
of a present or former connection between the Administrative Agents or the
Lenders 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 Administrative Agents or such Lenders
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement) and (ii) in the case of any Foreign Lender,
any taxes that are in effect and that would apply to a payment hereunder or
under the Term Notes, the Exchange Notes or any other Loan Document made to such
Foreign Lender as of the date such Foreign Lender becomes a party to this
Agreement, or in the case of any other Lender which changes its lending office
with respect to the Loan or the Exchange Notes to an office outside the U.S.,
any taxes that are in effect and would apply to a payment to such Lender as of
the date of the change of the lending office (all such non-excluded taxes,
levies, imports, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law
to deduct or withhold any Taxes from, or in respect of, any sum payable
hereunder or under the Term Notes, the Exchange Notes or any other Loan Document
to the Administrative Agents or the Lenders or any of their respective
Affiliates who may become a Lender: (i) the sum payable thereunder shall be
increased as may be necessary so that after making all required deductions or
withholdings (including deductions or withholdings applicable to additional sums
payable under this Section 2.9) the Administrative Agents or the Lenders or any
of their respective Affiliates receives an amount equal to the sum it would have
received had no such deductions or withholdings been made; (ii) the Borrower
shall make such deductions or withholdings; and (iii) the Borrower shall pay the
full amount deducted to the relevant tax authority or other authority in
accordance with applicable laws.
(b) Other Taxes. In addition, the Borrower agrees to pay any present
or future stamp, mortgage recording or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from any payment made
hereunder or under a Term Note, Exchange Note or other Loan Document or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the other Loan Documents (hereinafter referred to as "Other Taxes")
and hold each Administrative Agent and each Lender harmless from and against any
and all liabilities with respect to or resulting from any delay or omission
(other than to the extent attributable to such Lender) to pay such Other Taxes.
Each Lender represents that, to the best of its knowledge, except for any such
Other Taxes that may be imposed under the federal, state or local laws of the
United States (or any political subdivision thereof), it is not aware of any
such stamp, mortgage recording or documentary taxes or any other excise or
property taxes, charges or similar levies.
(c) Indemnity. The Borrower will indemnify any Administrative Agent
and any Lender for the full amount of Taxes or Other Taxes arising in connection
with payments made under this Agreement or any other Loan Document (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.9) paid by any Administrative
28
Agent or any Lender or any of their respective Affiliates and any liability
(including penalties, additions to tax interest and expenses) arising therefrom
or with respect thereto. Payment under this indemnification shall be made within
fifteen days from the date any Administrative Agent or any Lender or any of
their respective Affiliates makes written demand therefor; provided, however,
that the Borrower shall not be obligated to make payment to the Lender or the
Administrative Agent (as the case may be) pursuant to this Section 2.9(c) in
respect of penalties, interest and other liabilities attributable to any Taxes
or Other Taxes, if (i) written demand therefor has not been made by such Lender
or such Administrative Agent within 60 days from the date on which such Lender
or such Administrative Agent received written notice of the imposition of Taxes
or Other Taxes by the relevant taxing or governmental authority, but only to the
extent such penalties, interest and other similar liabilities are attributable
to such failure or delay by the Administrative Agent or the Lender in making
such written demand, (ii) such penalties, interest and other liabilities have
accrued after the Borrower had indemnified or paid an additional amount due as
of the date of such payment pursuant to this Section 2.9(c) or (iii) such
penalties, interest and other liabilities are attributable to the gross
negligence or willful misconduct of the Lender or the Administrative Agent or
such Affiliates. After the Lender or the Administrative Agent (as the case may
be) receives written notice of the imposition of the Taxes or Other Taxes which
are subject to this Section 2.9(c), such Lender and the Administrative Agents
will act in good faith to promptly notify the Borrower of its obligations
hereunder; provided, however, that the failure to so act shall not, standing
alone, affect the rights of the Administrative Agents or the Lenders under this
Section 2.9(c).
(d) Furnish Evidence to Administrative Agents. The Borrower will make
reasonable efforts to obtain certified copies of tax receipts evidencing the
payment of any Taxes deducted or withheld from each taxing authority imposing
such Taxes. The Borrower will furnish to the Lenders, within 60 days after the
date the payment of any Taxes so deducted or withheld is due pursuant to
applicable law, original or certified copies of tax receipts evidencing such
payment by the Borrower or, if such receipts are not obtainable, other evidence
of such payments by the Borrower reasonably satisfactory to the Lenders.
(e) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 2.9 shall survive the payment in full of all
amounts due hereunder and under the Term Notes.
(f) Mitigation. If the Borrower is required to pay additional amounts
to or for the account of any Lender pursuant to this Section 2.9 as a result of
a change in law or treaty occurring after such Lender first became a party to
this Agreement, then such Lender will, at the request of the Borrower, change
the jurisdiction of its Applicable Lending Office if such change (i) will
eliminate or reduce any such additional payment which may thereafter accrue and
(ii) is, in such Lender's sole, reasonable discretion, determined not to be
materially disadvantageous or cause unreasonable hardship to such Lender,
provided that fees, charges, costs or expenses that are related to such change
shall be borne by the Borrower on behalf of a Lender, and the mere existence of
such expenses, fees or costs shall not be deemed to be materially
disadvantageous or cause undue hardship to the Lender.
Each Lender and each Administrative Agent agrees that it will (i) take
all reasonable actions reasonably requested by the Borrower in writing that are
without material risk and cost to such Lender or such Administrative Agent and
consistent with the internal policies of such Lender and applicable legal and
regulatory restrictions (as the case may be) to maintain all exemptions, if any,
available to it from withholding taxes (whether available by treaty or existing
administrative waiver) and (ii) to the extent reasonable and without material
risk and cost to it, otherwise cooperate with the
29
Borrower to minimize any amounts payable by the Borrower under this Section 2.9;
provided, however, that in each case, any cost relating to such action or
cooperation requested by the Borrower shall be borne by the Borrower.
(g) Certification. Each Foreign Lender and Foreign Participant shall
deliver to the Borrower and the Administrative Agents, and if applicable, the
assigning Lender (and, in the case of a Foreign Participant, to the Lender from
which the related participation shall have been purchased) on or before the date
on which it becomes a party to this Agreement (or, in the case of a Foreign
Participant, on or before the date on which such Participant purchases the
related Participation) either:
(i) two duly completed and signed copies of either Internal Revenue
Service Form 1001 or its successor form or Form 4224 or its successor form
and related applicable forms, as the case may be; or
(ii) in the case of a Foreign Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and that does not comply with
the requirements of clause (A) hereof, (x) a statement to the effect that
such Lender is eligible for a complete exemption from withholding of U.S.
Taxes under Code Section 871(h) or 881(c), and (y) two duly completed and
signed copies of Internal Revenue Service Form W-8 or successor and related
applicable form.
Further, each Foreign Lender or Foreign Participant agrees (x) to
deliver to the Borrower and the Administrative Agents, and if applicable, the
assigning Lender (and, in the case of a Foreign Participant, to the Lender from
which the related Participation shall have been purchased) two further duly
completed and signed copies of such Forms 1001 or 4224, as the case may be, or
successor and related applicable forms, on or before the date that any such form
expires or becomes obsolete and promptly after the occurrence of any event
requiring a change from the most recent form(s) previously delivered by it in
accordance with applicable U.S. laws and regulations and (y) in the case of a
Foreign Lender that delivers a statement pursuant to Section 2.9(g)(ii) above,
to deliver to the Borrower and the Administrative Agents, and if applicable, the
assigning Lender, such statement on an annual basis on the anniversary of the
date on which such Foreign Lender became a party to this Agreement and to
deliver promptly to the Borrower and the Administrative Agents, and if
applicable, the assigning Lender, such additional statements and forms as shall
be reasonably requested by the Borrower from time to time unless, in any such
case, any change in law or regulation has occurred subsequent to the date such
Foreign Lender became a party to this Agreement (or in the case of a Foreign
Participant, the date on which such Foreign Participant purchased the related
Participation) which renders all such forms inapplicable or which would prevent
such Lender (or Participant) from properly completing and executing any such
form with respect to it and such Lender promptly notifies the Borrower and the
Administrative Agents (and, in the case of a Foreign Participant, the Lender
from which the related participation shall have been purchased) if it is no
longer able to deliver, or if it is required to withdraw or cancel, any form or
statement previously delivered by it pursuant to this Section 2.9(g).
(h) Failure to Provide Certification. Notwithstanding any provision
of this Agreement, the Borrower shall not be required to pay any Taxes or Other
Taxes pursuant to this Section 2.9 in respect of U.S. federal income taxes if
the obligation to withhold with respect to such Taxes or Other Taxes results
from, or would not have occurred but for, the failure of any Foreign Lender or
Foreign Participant to deliver the forms described in the preceding Section 2.9
in the manner and at the times specified in such paragraphs. A Foreign Lender
or Foreign Participant shall not be required to deliver any form or statement
pursuant to Section 2.9(g) that such Foreign Lender or Foreign Participant is
not legally able to deliver.
30
(i) Tax Benefit. If and to the extent that any Lender is able, in its
sole opinion, to apply or otherwise take advantage of any offsetting tax credit
or other similar tax benefit arising out of or in conjunction with any deduction
or withholding which gives rise to an obligation on the Borrower to pay any
Taxes or Other Taxes pursuant to this Section 2.9 then such Lender shall, to the
extent that in its sole opinion it can do so without prejudice to the retention
of the amount of such credit or benefit and without any other adverse tax
consequences for such Lender, reimburse to the Borrower at such time as such tax
credit or benefit shall have actually been received by such Lender such amount
as such Lender shall, in its sole opinion, have determined to be attributable to
the relevant deduction or withholding and as will leave such Lender in no better
or worse position than it would have been in if the payment of such Taxes or
Other Taxes had not been required.
Nothing in this Section 2.9 shall oblige any Lender to disclose to the
Borrower or any other person any information regarding its tax affairs or tax
computations or interfere with the right of any Lender to arrange its tax
affairs in whatever manner it thinks fit and, in particular, no Lender shall be
under any obligation to claim relief from its corporate profits or similar tax
liability in credits or deductions available to it and, if it does claim, the
extent, order and manner in which it does so shall be at its absolute
discretion.
Section 2.10. Right of Set Off; Sharing of Payments, Etc.
(a) Right of Set-Off. In addition to any rights now or hereafter
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence and during the continuance of any Event of
Default or if the Borrower becomes insolvent, however evidenced, the Borrower
authorizes each Lender at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final, whether or not collected or available) in any currency and
any other indebtedness at any time held by or owing to such Lender or any of its
Affiliates (including, without limitation, by branches and agencies of such
Lender wherever located) to or for the credit or the account of the Borrower
against and on account of the Obligations of the Borrower to such Lender under
this Agreement or under any of the other Loan Documents, including, without
limitation, all interests in or participation in the Obligations purchased by
such Lender, and all other claims of any nature or description arising out of or
in connection with this Agreement or any other Loan Document, irrespective of
whether or not such Lender shall have made any demand hereunder and although the
Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. A Lender may exercise such rights notwithstanding that the amounts
concerned may be expressed in different currencies and each Lender is authorized
to effect any necessary conversions at a market rate of exchange selected by it.
A Lender exercising its rights under this Section 2.10(a) shall provide prompt
notice to the Borrower following such exercise.
(b) Sharing. If any Lender shall obtain from the Borrower payment of
any principal of or interest on any Loan owing to it or payment of any other
amount under this Agreement, a Loan Document or any Term Note held by it though
the exercise of any right of set-off, banker's lien or counterclaim or similar
right or otherwise (other than from the Administrative Agents as provided
herein) and, as a result of such payment, such Lender shall have received a
greater percentage of the principal of or interest on the Loans or such other
amounts then due to such Lender by the Borrower than the percentage received by
any other Lenders, it shall promptly purchase from such other Lenders
participation in (or, if and to the extent specified by such Lender, direct
interests in) the Loans or such
31
other amounts, respectively, owing to such other Lenders (or any interest due
thereon, as the case may be) in such amounts, and make such other adjustments
from time to time as shall be equitable, to the end that all the Lenders shall
share the benefit of such excess payment (net of any expenses which may be
incurred by such Lender in obtaining or preserving such excess payment) pro rata
in accordance with the unpaid principal of and/or interest on the Loans or such
other amounts, respectively, owing to each of the Lenders. To such end all the
Lenders shall make appropriate adjustments among themselves (by the resale of
participation sold or otherwise) if such payment is rescinded or must otherwise
be restored.
(c) No Requirement. Nothing in this Agreement shall require any
Lender to exercise any such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such right with respect to
any other indebtedness or obligation of the Borrower. If, under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a set-off to which this Section 2.10 applies, such Lender shall, to
the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Lenders entitled under this Section
2.10 to share in the benefits of any recovery on such secured claim.
Section 2.11. Certain Fees.
The Borrower agrees to pay to each Arranger (in its capacity as
Administrative Agent and/or as Lender), for its own account, the fees specified
in the Fee Letter with respect to the Term Loans and Exchange Notes, amounts for
its expenses incurred hereunder and all other amounts owing under this Agreement
and the other Loan Documents.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
As of the date hereof and as of the Closing Date, the Borrower hereby
agrees with, and represents and warrants to, the Lenders that each of the
following representations and warranties is true and will be true after giving
pro forma effect to the making of the Loans hereunder (but not, unless otherwise
explicitly stated, the consummation of the Acquisitions):
Section 3.1. Acquisition Agreements.
(a) As of the Powertel Funding Date, the representations and
warranties of Powertel contained in the Powertel Acquisition Agreement are
hereby made by the Borrower and incorporated herein by reference for the benefit
of the Lenders (without giving effect to any waivers thereof or amendment
thereto subsequent to the date hereof) and are true and correct in all respects
except to the extent which, individually or in the aggregate, would not result
in a material adverse effect on the condition (financial or other), business,
prospects, properties or results of operations of the operations acquired
pursuant to the Powertel Acquisition.
(b) As of the ▇▇▇▇ South Funding Date, the representations and
warranties of BellSouth Mobility contained in the ▇▇▇▇ South Letter Agreement,
if any, and/or in the ▇▇▇▇ South Lease, to the extent then executed and
delivered, are hereby made by the Borrower and incorporated herein by reference
for the benefit of the Lenders (without giving effect to any waivers thereof or
amendment thereto subsequent to the date hereof) and are true and correct in all
respects except to the extent which, individually or in the aggregate, would not
result in a material adverse effect on the condition (financial or other),
business, prospects, properties or results of operations of the assets acquired
pursuant to the ▇▇▇▇ South Letter Agreement.
32
(c) As of the date of this Agreement and as of each Funding Date, the
Formation Agreement is in full force and effect and, to the knowledge of the
Borrower, all of the conditions to the consummation of the BAM Joint Venture
contained in the Formation Agreement will be satisfied without waiver.
Section 3.2. Organization; Powers. The Borrower has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware with power and corporate authority to own its
properties and conduct its business as now conducted and as proposed to be
conducted, and has been duly qualified and is in good standing under the laws of
each other jurisdiction, or place where the nature of its properties or the
conduct of its business requires such qualification, except where the failure to
so register or qualify or to be in good standing would not have a Material
Adverse Effect; and each Subsidiary of the Borrower has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation.
Section 3.3. Due Authorization and Enforceability.
(a) Each of the Transaction Documents: (i) has been duly authorized,
executed and delivered by the Borrower and each of its Subsidiaries (to the
extent each is a party thereto) and (ii) assuming due authorization, execution
and delivery by the Lenders, constitutes a valid and binding obligation of
Borrower and each of its Subsidiaries (to the extent each is a party thereto)
enforceable against each such Person in accordance with its terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights from time to time in
effect and to general equity principles including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing, regardless of
whether in a proceeding at law or equity).
(b) The Loans, the Term Notes and the Exchange Notes have been duly
authorized by the Borrower. When the Term Notes and the Exchange Notes have
been executed and delivered pursuant to the terms of this Agreement or the
Exchange Note Indenture, as applicable, each of the Term Notes and, assuming due
authentication of the Exchange Notes by the Exchange Note Trustee, the Exchange
Notes will be valid and binding obligations of the Borrower, enforceable against
it in accordance with their terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights from time to time in effect and to general equity principles
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding at law or equity).
Section 3.4. No Conflicts; No Consents. The execution and delivery
of the Transaction Documents, the consummation of the transactions contemplated
hereby or thereby and compliance with the terms and provisions hereof or thereof
will not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, sale/leaseback agreement, loan agreement or other similar financing
agreement or instrument or other agreement or instrument to which the Borrower
or any of its Subsidiaries is a party or by which the Borrower or any of its
Subsidiaries is bound or to which any of the property or assets of the Borrower
or any of its Subsidiaries is subject, except such breaches, violations or
defaults that in the aggregate would not have a Material Adverse Effect, nor
will such action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Borrower, nor will such action result any
violation of the provisions of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Borrower
or any of its Subsidiaries or any of their properties, except such violations
that in the aggregate would not have a Material Adverse Effect; and no consent,
33
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the consummation by
the Borrower of the transactions contemplated by this Agreement, the Exchange
Note Indenture, the Escrow Agreement or the Registration Rights Agreement or the
issuance and delivery of the Exchange Notes by the Borrower, except for such
consents, approvals, authorizations, registrations or qualifications (A) as may
be required by securities or "blue sky" laws of any State of the United States
in connection with the Exchange Notes, (B) as contemplated by the Registration
Rights Agreement, (C) as may already have been obtained or made, (D) as may be
required pursuant to the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976
("HSR Act"), (E) as may be required in connection with the formation and
qualification of the BAM Joint Venture and its subsidiary joint ventures, (F) as
may be required in connection with the qualification of CCP Inc. in various
jurisdictions in order to consummate the Powertel Acquisition, (G) as may be
required in connection with the formation and qualification of subsidiaries to
consummate the ▇▇▇▇ South Acquisition and (H) which the failure to obtain or
make would not, individually or in the aggregate, result in a Material Adverse
Effect.
Section 3.5. No Violations; Material Contracts. Neither the
Borrower nor any of its subsidiaries is in violation of its Certificate of
Incorporation or By-laws or in default in any material respect in the
performance or observance of any obligation, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, except for such defaults that, in the aggregate, would
not have a Material Adverse Effect.
Section 3.6. Capital Stock; Subsidiaries. The Borrower has an
authorized capitalization as set forth on its registration statement, dated
February 3, 1999, filed on Form S-4 under the Securities Act, as amended, and
all of the issued shares of capital stock of the Borrower have been duly and
validly authorized and issued and are fully paid and non-assessable; and all of
the issued shares of capital stock of each subsidiary of the Borrower (except
for Castle Transmission USA, LLC ("CT USA")) have been duly and validly
authorized and issued, are fully paid and non-assessable and (except for
directors' qualifying shares and except for the minority interest of CTSH owned
by TdF and its affiliates, are owned directly or indirectly by the Borrower,
free and clear of all Liens other than the Liens under the Senior Credit
Facility and under CTI's credit facility with Credit Suisse First Boston and
▇.▇. ▇▇▇▇▇▇ Securities Ltd.
Section 3.7. Liens. There are no Liens on any assets of the
Borrower or any of its Subsidiaries except Permitted Liens.
Section 3.8. Governmental Regulations. None of the Borrower or any
of its Subsidiaries is or will be subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding Company Act of 1935,
as amended, the Federal Power Act, the Interstate Commerce Act or to any other
statute, rule or regulation limiting its ability to incur Indebtedness for
borrowed money.
Section 3.9. [Reserved.]
Section 3.10. Financial Statements; No Undisclosed Liabilities.
(a) The consolidated balance sheet of the Borrower and its
Subsidiaries as of December 31, 1998 that is attached hereto as Schedule 3.10(a)
fairly presents the consolidated financial position of the Borrower and its
Subsidiaries as of such date, in accordance with GAAP consistently
34
applied (except as otherwise specifically indicated therein). The consolidated
statements of income and cash flows of the Borrower and its Subsidiaries that
are attached hereto as Schedule 3.10(a) have been prepared in conformity with
GAAP applied on a consistent basis through all the periods involved (except as
otherwise specifically indicated therein) and fairly present the consolidated
results of operations of each of the Borrower and its Subsidiaries for the
periods indicated.
(b) The statement of net assets of the ▇▇▇▇ Atlantic Mobile Tower
Operations as of September 30, 1998 that is attached hereto as Schedule 3.10(b)
fairly presents the net assets of the ▇▇▇▇ Atlantic Mobile Tower Operations as
of such date, in accordance with GAAP consistently applied (except as otherwise
specifically indicated therein). The statements of revenues and direct expenses
of ▇▇▇▇ Atlantic Mobile Tower Operations for the year ended December 31, 1997
and the nine months ended September 30, 1998 that are attached hereto as
Schedule 3.10(b) have been prepared in conformity with GAAP applied on a
consistent basis through all the periods involved (except as otherwise
specifically indicated therein) and fairly present the revenues and direct
expenses of the ▇▇▇▇ Atlantic Mobile Tower Operations for the periods indicated.
(c) The consolidated balance sheet of the operations acquired pursuant
to the Powertel Acquisition as of December 31, 1998 that is attached hereto as
Schedule 3.10(c) fairly presents the net assets of the operations acquired
pursuant to the Powertel Acquisition as of such date, in accordance with GAAP
consistently applied (except as otherwise specifically indicated therein). The
statement of revenue and direct expenses for such operations for the year ended
December 31, 1998 that are attached hereto as Schedule 3.10(c) have been
prepared in conformity with GAAP applied on a consistent basis through all the
periods involved (except as otherwise specifically indicated therein) and fairly
present the consolidated results of operations of each of Powertel Inc. and its
Subsidiaries for the periods indicated.
(d) The unaudited statement of income of the assets acquired pursuant
to the ▇▇▇▇ South Letter Agreement for the year ended December 31, 1998 that are
attached hereto as Schedule 3.10(d) have been prepared in conformity with GAAP
(except as to notes, year-end adjustments and other items indicated therein) and
fairly present the income relating to such assets for the indicated period.
(e) The pro forma consolidated statements of income included in
Schedule 3.10(e) fairly present the pro forma position, results of operations
and the other information purported to be shown therein at the respective dates
or for the respective periods therein specified, assuming the consummation of
the Acquisitions and the transactions contemplated in the Formation Agreement
and giving effect to the other assumptions indicated therein; and the pro forma
consolidated balance sheet of the Borrower included in Schedule 3.10(e) fairly
presents the consolidated financial condition of the Borrower and its
Subsidiaries on the Closing Date (after giving effect to all simultaneous
transactions to occur on such date and the other assumptions indicated therein).
(f) The historical and pro forma financial statements attached hereto
as Schedule 3.10(a), Schedule 3.10(b), Schedule 3.10(c) and Schedule 3.10(e)
comply as to form with the requirements applicable to such financial statements
in, and constitute all of the financial statements required by, Regulation S-X
of the Securities Act for a Form S-1 registration statement.
(g) Neither the Borrower nor any of its Subsidiaries (prior to giving
effect to the consummation of the Transactions) has any liability (direct or
contingent) except (i) those shown on the most recent audited balance sheets
described in Section 3.10(a), (ii) those incurred under the Transaction
35
Documents and (iii) those incurred in the ordinary course of business since the
date of such audited balance sheets.
(h) For purposes of this Section 3.10, all financial statements
required pursuant to Section 5.5 of this Agreement, once approved by the
Lenders, shall be added to Schedule 3.10(a), Schedule 3.10(b), Schedule 3.10(c),
Schedule 3.10(d) or Schedule 3.10(e), as appropriate, and shall become subject
to the Borrower's representations contained in Sections 3.10(a) through 3.10(g)
above.
Section 3.11. Full Disclosure. No information, report, financial
statement or certificate delivered or to be delivered to the Lenders in
connection with the Transactions contains or will contain any untrue statement
of material fact or omitted or omits or will omit to state a material fact
necessary to make such statements not misleading in light of the circumstances
in which such statements were made; provided that to the extent any such
information, report, financial statement, exhibit or schedule was based upon or
constitutes a forecast or projection or pro forma financial information, the
Borrower represents only that it acted in good faith and utilized reasonable
assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule. The Borrower has disclosed to the
Lenders in all material respects the status of negotiations concerning each
acquisition (other than the Powertel Acquisition, the ▇▇▇▇ South Lease and the
BAM Joint Venture) currently being actively considered by the Borrower or any of
its controlled Affiliates.
Section 3.12. Private Offering; Rule 144A Matters.
(a) Based in part on the accuracy of the representations and
warranties of, and compliance with the covenants and agreements by, the Lenders
in Section 6.1, the issuance of the instruments evidencing the Securities are
and will be exempt from the registration and prospectus delivery requirements of
the Securities Act. The Borrower has not issued or sold Securities to anyone
other than the Lenders. No securities of the same class as the Securities have
been issued or sold by the Borrower within the six-month period immediately
prior to the date hereof. The Borrower agrees that neither it, nor anyone
acting on its behalf, will (i) offer the Securities so as to subject the making,
issuance and/or sale of the Securities to the registration or prospectus
delivery requirements of the Securities Act or (ii) offer any securities that
are similar to the Securities for issuance or sale to, or solicit any offer to
acquire any of the same from, or otherwise approach or negotiate with respect to
the same with, anyone if the issuance or sale of the Securities and any such
securities would be integrated as a single offering for the purposes of the
Securities Act, including without limitation, Regulation D thereunder, in such a
manner as would require registration under the Securities Act thereof. Subject
to the terms of the Exchange Note Indenture and the Escrow Agreement, each of
the Exchange Notes will bear a legend setting forth the restrictions on the
transferability thereof imposed by the Securities Act for so long as such
restrictions apply.
(b) In the case of each offer, sale or issuance of the Securities no
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) was or will be used by the Borrower or
their representatives, including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
(c) The Securities will be eligible for resale pursuant to Rule 144A
under the Securities Act. When the Securities are issued and delivered pursuant
to the Transaction Documents, they will not be of the same class (within the
meaning of Rule 144A(d) (3) under the Securities Act) as
36
any other security of the Borrower that is listed on a national securities
exchange registered under Section 6 of the Exchange Act or that is quoted in a
United States automated interdealer quotation system. Neither the issuance of
the Exchange Notes nor the execution, delivery and performance of the
Transaction Documents (other than the Registration Rights Agreement) will
require the qualification of an indenture under the Trust Indenture Act.
Section 3.13. Absence of Proceedings. Except with respect to the
matters disclosed in Schedule 3.13, there are no legal or governmental
proceedings pending to which the Borrower or any of its Subsidiaries is a party
or of which any property of the Borrower or any of its Subsidiaries is the
subject which, if determined adversely to the Borrower or any of its
Subsidiaries, would individually or in the aggregate have a Material Adverse
Effect; and, to the best of the Borrower's knowledge, no such proceedings are
threatened by governmental authorities or by others.
Section 3.14. Taxes. The Borrower and its Subsidiaries have duly
and timely filed all required material tax returns required to be filed through
the date hereof and paid prior to delinquency all material taxes, assessments,
and governmental levies due thereon except those not in the process of
enforcement and being contested in good faith and by appropriate proceedings.
Section 3.15. Financial Condition; Solvency.
(a) The Borrower is, and immediately after giving effect to the making
of the Loans will be, Solvent.
(b) The Borrower does not intend to incur debts beyond its ability to
pay such debts as they mature, taking into account the timing and amounts of
cash to be received by it and the timing and amounts of cash to be payable on or
in respect of its Indebtedness.
Section 3.16. Absence of Certain Changes. Since September 30, 1998,
there has not been any event or series of events, adverse condition or change in
or affecting the Borrower that, individually or in the aggregate, has had or
would have a Material Adverse Effect.
Section 3.17. Year 2000 Compliance The Borrower has reviewed its
operations and that of its subsidiaries and is in the process of reviewing any
third parties with which the Borrower or any of its subsidiaries has a material
relationship to evaluate the extent to which the business or operations of the
Borrower or any of its Subsidiaries will be affected by the Year 2000 Problem.
As a result of such review, the Borrower has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse Effect or
result in a Default. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the receipt,
transmission, processing, manipulation, storage, retrieval, retransmission or
other utilization of data or in the operation of mechanical or electrical
systems of any kind will not, in the case of dates or time periods occurring
after December 31, 1999, function in any material respect at least as
effectively as in the case of dates or time periods occurring prior to January
1, 2000.
Section 3.18. Properties. The Borrower and its Subsidiaries have
good and indefeasible title to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as would not be reasonably expected,
in the aggregate, to result in a Material Adverse Effect; and any real property
and buildings held under lease by the Borrower and its Subsidiaries are held by
them under valid, subsisting
37
and enforceable leases with such exceptions as would not be reasonably expected,
in the aggregate, to result in a Material Adverse Effect.
Section 3.19. Permits; Registration.
(a) The Borrower and each of the Significant Subsidiaries has such
permits, licenses, franchises, certificates of need and other approvals or
authorizations of any governmental or regulatory authority ("Permits"),
including, without limitation, any permits required by the Federal
Communications Commission ("FCC"), the Federal Aviation Administration or the
Office of Telecommunications, as are necessary under applicable law to own their
respective properties and to conduct their respective businesses, except to the
extent that the failure to have such Permits would not have a Material Adverse
Effect. The Borrower and the Significant Subsidiaries have fulfilled and
performed in all material respects, all their respective obligations with
respect to the Permits, and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such Permit,
except to the extent that any such revocation or termination would not have a
Material Adverse Effect. None of the Permits contains any restriction that has
not previously been satisfied and that is materially burdensome to the Borrower
or any of the Significant Subsidiaries
(b) For each existing tower of the Borrower not yet registered with
the FCC where registration will be required, the FCC's grant of an application
for registration of such tower will not have a significant environmental effect
as defined under Section 1.1307(a) of the FCC's rules.
Section 3.20. ERISA. The Borrower and each of the Significant
Subsidiaries are in compliance in all material respects with all presently
applicable provisions of the Employee Retirement Income Security Act of 1974, as
amended, including the regulations and published interpretations thereunder
("ERISA"); no "reportable event" (as defined in ERISA) has occurred with respect
to any "pension plan" (as defined in ERISA) for which the Borrower would have
any liability; the Borrower has not incurred and does not expect to incur
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Code;
and each "pension plan" for which the Borrower would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
Section 3.21. Environmental Matters. There has been no storage,
disposal, generation, manufacture, refinement, transportation, handling or
treatment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Borrower or any of its subsidiaries (or, to the knowledge of
the Borrower, any of their predecessors in interest) at, upon or from any of the
property now or previously owned or leased by the Borrower or any of its
subsidiaries in violation of any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit or which would require remedial action under
any applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have, or
could not be reasonably likely to have, singularly or in the aggregate, a
Material Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property in a manner reasonably likely
to affect such property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the Borrower or any
of its subsidiaries or with respect to which the Borrower or any of its
subsidiaries has knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate, a
38
Material Adverse Effect; and the terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
Section 3.22. Available Cash for the BAM Joint Venture. As of the
date of this Agreement and without giving effect to the funding of any Term
Loans hereunder, (i) each of CCAIC, CC Investment Corp. and CC Investment Corp.
II, is an Unrestricted Subsidiary of the Borrower, (ii) the Borrower has
contributed the BAM Funds to CC Investment Corp. and CC Investment Corp. II, and
(iii) CC Investment Corp. and CC Investment Corp. II collectively own all of the
common stock of CCAIC.
ARTICLE IV.
COVENANTS
So long as any Commitment shall remain outstanding or any Obligation
shall remain unpaid, the Borrower covenants and agrees with the Lenders as
follows:
Section 4.1. Use of Proceeds. The Borrower shall use the proceeds
of the Loans solely to finance the Acquisition Escrow Payments. In the event the
Borrower abandons the BAM Joint Venture or if the Formation Agreement expires or
is otherwise terminated prior to the funding of any Term Loans, then the
Borrower will apply the BAM Funds toward the Acquisition Escrow Payments in lieu
of the proceeds of the Term Loans. However, if a Joint Venture Termination
occurs after the funding of any Term Loans, then the Borrower will be required
to apply the BAM Funds to redeem the Term Loans and Other Term Loans pursuant to
Section 2.4(a).
Section 4.2. Notice of Default and Related Matters. The Borrower
shall furnish to the Administrative Agents (with copies for each Lender) written
notice, promptly upon becoming aware of the existence of:
(a) any condition or event that constitutes a Default or an Event of
Default, specifying the nature and period of existence thereof and the
action taken or proposed to be taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any Person to file or commence, any action, suit or
proceeding, whether at law or in equity or by or before any Governmental
Entity, against or affecting the Borrower or any of its Subsidiaries or any
of their respective Affiliates that could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect; and
(c) any development that, individually or in the aggregate, has
resulted in, or could reasonably be expected to have, a Material Adverse
Effect.
Section 4.3. Reports. Whether or not required by the rules and
regulations of the SEC, so long as any Term Notes are outstanding, the Borrower
shall furnish to the Lenders (i) all quarterly and annual financial information
that would be required to be contained in a filing with the SEC on Forms 10-Q
and 10-K if the Borrower were required to file such forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries (showing in reasonable detail, in
the footnotes to the financial statements and in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" (in each case
39
to the extent not prohibited by the SEC's rules and regulations), (A) the
financial condition and results of operations of the Borrower and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Borrower and (B) the Tower Cash Flow for
the most recently completed fiscal quarter and the Adjusted Consolidated Cash
Flow for the most recently completed four-quarter period) and, with respect to
the annual information only, a report thereon by the Borrower's certified
independent accountants and (ii) all current reports that would be required to
be filed with the SEC on Form 8-K if the Borrower were required to file such
reports, in each case within the time periods specified in the SEC's rules and
regulations. In addition, whether or not required by the rules and regulations
of the SEC, the Borrower shall file a copy of all such information and reports
with the SEC for public availability within the time periods specified in the
SEC's rules and regulations (unless the SEC will not accept such a filing) and
make such information available to securities analysts and prospective investors
upon request.
Section 4.4. Compliance Certificate.
(a) The Borrower shall deliver to the Administrative Agents, within 90
days after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Borrower and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Borrower has kept, observed,
performed and fulfilled its obligations under this Agreement, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Borrower has kept, observed, performed and fulfilled
each and every covenant contained in this Agreement and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Agreement (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Borrower is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Term Loans is prohibited or if such event has occurred,
a description of the event and what action the Borrower is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.3 above shall be accompanied by a
written statement of the Borrower's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Borrower has violated
any provisions of Article IV hereof or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Borrower shall, so long as any of the Term Notes are
outstanding, deliver to the Administrative Agents, forthwith upon any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Borrower is
taking or proposes to take with respect thereto.
Section 4.5. Taxes. The Borrower shall pay, and shall cause each
of its Subsidiaries to pay, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Lenders.
40
Section 4.6. Stay, Extension and Usury Laws. The Borrower
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Agreement; and the Borrower (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Lenders, but shall suffer and
permit the execution of every such power as though no such law has been enacted.
Section 4.7. Restricted Payments. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other payment or distribution on
account of the Borrower's or any of its Restricted Subsidiaries' Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Borrower or any of its Restricted
Subsidiaries) or to the direct or indirect holders of the Borrower's or any of
its Restricted Subsidiaries' Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of the Borrower or to the Borrower or a Restricted
Subsidiary of the Borrower); (ii) purchase, redeem or otherwise acquire or
retire for value (including, without limitation, in connection with any merger
or consolidation involving the Borrower) any Equity Interests of the Borrower or
any direct or indirect parent of the Borrower (other than any such Equity
Interests owned by the Borrower or any Restricted Subsidiary of the Borrower);
(iii) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to
the Term Notes, except a payment of interest or the payment of principal at
Stated Maturity; or (iv) make any Restricted Investment (all such payments and
other actions set forth in clauses (i) through (iv) above, including those
occurring prior to the date hereof, being collectively referred to as
"Restricted Payments"), unless, at the time of and after giving effect to such
Restricted Payment:
(a) no Default shall have occurred and be continuing or would occur as
a consequence thereof; and
(b) the Borrower would have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt to Adjusted Cash Flow Ratio
test set forth in Section 4.9; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Borrower and its Restricted
Subsidiaries after November 25, 1997, (excluding Restricted Payments
permitted by clauses (ii), (iii) and (iv) of the next succeeding
paragraph), is less than the sum without duplication of (i) 50% of the
Consolidated Net Income of the Borrower for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after November 25, 1997 to the end of the Borrower's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such deficit), plus
(ii) 100% of the aggregate net cash proceeds received by the Borrower since
November 25, 1997 as a contribution to its common equity capital or from
the issue or sale of Equity Interests of the Borrower (other than
Disqualified Stock and except to the extent such net cash proceeds are used
to incur new Indebtedness outstanding pursuant to clause (x) in Section
4.9) or from the issue or sale of Disqualified Stock or debt securities of
the Borrower that have been converted into such Equity Interests (other
than Equity Interests (or Disqualified Stock or convertible debt
securities) sold to a Subsidiary of the Borrower and other
41
than Disqualified Stock or convertible debt securities that have been
converted into Disqualified Stock), plus (iii) to the extent that any
Restricted Investment that was made after November 25, 1997 is sold for
cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash
return of capital with respect to such Restricted Investment (less the cost
of disposition, if any) and (B) the initial amount of such Restricted
Investment, plus (iv) to the extent that any Unrestricted Subsidiary of the
Borrower is designated as a Restricted Subsidiary after November 25, 1997,
the lesser of (A) the fair market value of the Borrower's Investment in
such Subsidiary as of the date of such designation, or (B) the sum of (x)
the fair market value of the Borrower's Investment in such Subsidiary as of
the date on which such Subsidiary was originally designated as an
Unrestricted Subsidiary and (y) the amount of any Investments made in such
Subsidiary subsequent to such designation (and treated as a Restricted
Payment) by the Borrower or any Restricted Subsidiary; provided that (i) in
the event the Unrestricted Subsidiary designated as a Restricted Subsidiary
is CTSH, the references in clause (A) and (B) of this clause (iv) to fair
market value of the Borrower's Investment in such Subsidiary shall mean the
amount by which the fair market value of such Investment exceeds 34.3% of
the fair market value of CTSH as a whole and (ii) in the event the
Unrestricted Subsidiaries designated as Restricted Subsidiaries are CCAIC
and its Subsidiaries, the references in clauses (A) and (B) of this clause
(d) to fair market value of the Borrower's Investments in such Subsidiaries
shall mean the amount by which the fair market value of all such
Investments exceeds $250.0 million, plus (v) 50% of any dividends received
by the Borrower or a Restricted Subsidiary after November 25, 1997 from an
Unrestricted Subsidiary of the Borrower, to the extent that such dividends
were not otherwise included in Consolidated Net Income of the Borrower for
such period.
The foregoing provisions shall not prohibit (i) the payment of any
dividend within 60 days after the date of declaration thereof, if at said date
of declaration such payment would have complied with the provisions of this
Agreement; (ii) the making of any Investment or the redemption, repurchase,
retirement, defeasance or other acquisition of any subordinated Indebtedness or
Equity Interests of the Borrower in exchange for, or out of the net cash
proceeds of the sale (other than to a Subsidiary of the Borrower) of, any Equity
Interests of the Borrower (other than any Disqualified Stock); provided that
such net cash proceeds are not used to incur new Indebtedness pursuant to clause
(x) in Section 4.9); and provided further that, in each such case, the amount of
any such net cash proceeds that are so utilized shall be excluded from clause
(c) (ii) of the preceding paragraph; (iii) the payment of any dividend by a
Restricted Subsidiary of the Borrower to the holders of its common Equity
Interests on a pro rata basis; or (iv) the defeasance, redemption, repurchase or
other acquisition of subordinated Indebtedness with the net cash proceeds from
an incurrence of Permitted Refinancing Indebtedness.
The Board of Directors may designate any Restricted Subsidiary to be
an Unrestricted Subsidiary if such designation would not cause a Default;
provided that in no event shall the businesses operated by the Borrower's
Restricted Subsidiaries as of November 25, 1997 be transferred to or held by an
Unrestricted Subsidiary. For purposes of making such determination, all
outstanding Investments by the Borrower and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated shall be deemed to
be Restricted Payments at the time of such designation and shall reduce the
amount available for Restricted Payments under the first paragraph of this
covenant. All such outstanding Investments will be deemed to constitute
Investments in an amount equal to the fair market value of such Investments at
the time of such designation. Such designation will only be permitted if such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. The
Board of Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary if such designation would not cause a Default.
42
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Borrower or the
applicable Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any property, assets or Investments required
by this covenant shall be determined by the Board of Directors whose resolution
with respect thereto shall be delivered to the Trustee.
Section 4.8. Dividend and Other Payment Restrictions Affecting
Subsidiaries. The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (i)(a) pay dividends or make any other
distributions to the Borrower or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (b) pay any indebtedness owed to the Borrower or
any of its Restricted Subsidiaries, (ii) make loans or advances to the Borrower
or any of its Restricted Subsidiaries or (iii) transfer any of its properties or
assets to the Borrower or any of its Restricted Subsidiaries. However, the
foregoing restrictions shall not apply to encumbrances or restrictions existing
under or by reason of (a) Existing Indebtedness or Indebtedness under the Senior
Credit Facility, and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings thereof;
provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more restrictive,
taken as a whole, with respect to such dividend and other payment restrictions
than those contained in the applicable series of Existing Indebtedness or in the
Senior Credit Facility, (b) encumbrances and restrictions applicable to any
Unrestricted Subsidiary, as the same are in effect as of the date on which such
Subsidiary becomes a Restricted Subsidiary, and as the same may be amended,
modified, restated, renewed, increased, supplemented, refunded, replaced or
refinanced; provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings are no
more restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in the applicable series of
Indebtedness of such Subsidiary as in effect on the date on which such
Subsidiary becomes a Restricted Subsidiary, (c) this Agreement and the Term
Notes, (d) applicable law, (e) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Borrower or any of its Restricted Subsidiaries
as in effect at the time of such acquisition (except to the extent such
Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Agreement to
be incurred, (f) by reason of customary non-assignment provisions in leases or
licenses entered into in the ordinary course of business, (g) purchase money
obligations for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iii) above on the property so
acquired, (h) the provisions of agreements governing Indebtedness incurred
pursuant to clause (iv) of the second paragraph of Section 4.9, (i) any
agreement for the sale of a Restricted Subsidiary that restricts that Restricted
Subsidiary pending its sale, (j) Permitted Refinancing Indebtedness, provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being refinanced, (k)
Liens permitted to be incurred pursuant to the provisions of Section 4.12 that
limit the right of the debtor to transfer the assets subject to such Liens, (l)
provisions with respect to the disposition or distribution of assets or property
in joint venture agreements and other similar agreements and (m) restrictions on
cash or other deposits or net worth imposed by customers under contracts entered
into in the ordinary course of business.
43
Section 4.9. Incurrence of Indebtedness and Issuance of Preferred
Stock. The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or otherwise become directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness (including Acquired
Debt) and the Borrower shall not issue any Disqualified Stock and shall not
permit any of its Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Borrower may incur Indebtedness (including
Acquired Debt) or issue shares of Disqualified Stock and the Borrower's
Restricted Subsidiaries may incur Eligible Indebtedness if, in each case, (i) no
Default shall have occurred and be continuing or would occur as a consequence
thereof and (ii) the Borrower's Debt to Adjusted Consolidated Cash Flow Ratio at
the time of incurrence of such Indebtedness or the issuance of such Disqualified
Stock, after giving pro forma effect to such incurrence or issuance as of such
date and to the use of proceeds therefrom as if the same had occurred at the
beginning of the most recently ended four full fiscal quarter period of the
Borrower for which internal financial statements are available, would have been
no greater than 6.5 to 1.
The provisions of the first paragraph of this covenant shall not apply
to the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt") if no Default shall have occurred and be continuing or would
occur as a consequence thereof:
(i) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Indebtedness (including Indebtedness under Credit
Facilities) in an aggregate principal amount (with letters of credit being
deemed to have a principal amount equal to the maximum potential liability
of the Borrower and its Restricted Subsidiaries thereunder) at any one time
outstanding not to exceed the greater of (x) $100.0 million less the
aggregate amount of all Net Proceeds of Assets Sales applied to repay
Indebtedness under a Credit Facility since November 25, 1997 and (y) 70% of
the Eligible Receivables that are outstanding as of such date of
incurrence;
(ii) the incurrence by the Borrower and its Restricted Subsidiaries
of the Existing Indebtedness;
(iii) the incurrence by the Borrower of Indebtedness represented by
the Senior Discount Notes;
(iv) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations, in each case incurred
for the purpose of financing all or any part of the purchase price or cost
of construction or improvement of property, plant or equipment used in the
business of the Borrower or such Restricted Subsidiary, in an aggregate
principal amount, including all Permitted Refinancing Indebtedness incurred
to refund, refinance or replace any other indebtedness incurred pursuant to
this clause (iv), not to exceed $5.0 million at any time outstanding;
(V) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace,
defease or refund indebtedness (other than intercompany Indebtedness) that
was permitted by this Agreement to be incurred under the first paragraph of
this Section 4.9 or clauses (ii) or (iii) or this clause (v) of this
paragraph;
44
(vi) the incurrence by the Borrower or any of its Restricted Subsidiaries
of intercompany Indebtedness between or among the Borrower and any of its
Restricted Subsidiaries; provided, however, that (i) if the Borrower is
the obligor on such Indebtedness, such Indebtedness is expressly
subordinated to the prior payment in full in cash of all Obligations with
respect to the Term Notes and (ii) (a) any subsequent issuance or transfer
of Equity Interests that results in any such Indebtedness being held by a
Person other than the Borrower or a Restricted Subsidiary and (b) any sale
or other transfer of any such Indebtedness to a Person that is not either
the Borrower or a Restricted Subsidiary shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Borrower or such
Restricted Subsidiary, as the case may be;
(vii) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate risk with respect to any floating rate
Indebtedness that is permitted by the terms of this Section 4.9 to be
outstanding or currency exchange risk;
(viii) the guarantee by the Borrower or any of its Restricted
Subsidiaries of Indebtedness of the Borrower or a Restricted Subsidiary of
the Borrower that was permitted to be incurred by another provision of this
Section 4.9;
(ix) the incurrence by the Borrower or any of its Restricted
Subsidiaries of Acquired Debt in connection with the acquisition of assets
or a new Subsidiary and the incurrence by the Borrower's Restricted
Subsidiaries of Indebtedness as a result of the designation of an
Unrestricted Subsidiary as a Restricted Subsidiary; provided that, in the
case of any such incurrence of Acquired Debt, such Acquired Debt was
incurred by the prior owner of such assets or such Restricted Subsidiary
prior to such acquisition by the Borrower or one of its Restricted
Subsidiaries and was not incurred in connection with, or in contemplation
of, such acquisition by the Borrower or one of its Restricted Subsidiaries;
and provided further that, in the case of any incurrence pursuant to this
clause (ix), the Borrower would have been permitted to incur at least $1.00
of additional Indebtedness (other than Permitted Debt) immediately after
such incurrence pursuant to the Debt to Adjusted Consolidated Cash Flow
Ratio test set forth in the first paragraph of this Section 4.9, calculated
as if such incurrence had occurred as of the actual date of incurrence and
the related acquisition or designation (as applicable) had occurred at the
beginning of the most recently ended four full fiscal quarter period of the
Borrower for which internal financial statements are available;
(x) the incurrence by the Borrower of Indebtedness not to exceed, at
any one time outstanding, 2.0 times the aggregate net cash proceeds from
the issuance and sale, other than to a Subsidiary, of Equity Interests
(other than Disqualified Stock) of the Borrower since November 25, 1997
(less that amount of such proceeds used to make Restricted Payments as
provided in clause (c)(ii) of the first paragraph or clause (ii) of the
second paragraph of the covenant described in Section 4.7); provided that
such Indebtedness does not mature prior to the stated Maturity of the Notes
and the Weighted Average Life to Maturity of such Indebtedness is longer
than that of the Term Notes; and
(xi) the incurrence by the Borrower or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, not to exceed
$5.0 million.
The Borrower shall not (i) incur any Indebtedness that is
contractually subordinated in right of payment to any other Indebtedness of the
Borrower unless such Indebtedness is also contractually subordinated in right of
payment to the Term Notes and the Securities on substantially identical terms;
provided, however, that no Indebtedness of the Borrower shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Borrower solely by virtue of being unsecured and (ii) the Borrower shall not
permit any of its Unrestricted Subsidiaries to incur any Indebtedness other than
Non-Recourse Debt.
For purposes of determining compliance with this Section 4.9, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xi) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.9, the
Borrower shall, in its sole discretion, classify (or later reclassify in whole
or in part) such item of Indebtedness in any manner that complies with this
Section 4.9. Accrual of interest, accretion or amortization of original issue
discount and the payment of interest in the form of additional Indebtedness
shall not be deemed to be an incurrence of Indebtedness for purposes of this
Section 4.9. For avoidance of doubt in determining compliance with this Section
4.9, any Indebtedness incurred since November 25, 1997 (including the
Indebtedness represented by the Term Loans) shall be deemed not to constitute
"Existing Indebtedness" and shall instead be classified to comply with the
criteria of one or more categories of Permitted Debt described in clauses (i)
through (xi) above.
Section 4.10. Asset Sales. The Borrower shall not, and shall not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless
(i) the Borrower (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair market
value (evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (ii) except in the case of
a Tower Asset Exchange, at least 75% of the consideration therefor received by
the Borrower or such Restricted Subsidiary is in the form of cash or Cash
Equivalents; provided that the amount of (x) any liabilities (as shown on the
Borrower's or such Restricted Subsidiary's most recent balance sheet), of the
Borrower or any Restricted Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Term Notes or any
guarantee thereof) that are assumed by the transferee of any such assets
pursuant to a customary novation agreement that releases the Borrower or such
Restricted Subsidiary from further liability and (y) any securities, notes or
other obligations received by the Borrower or any such Restricted Subsidiary
from such transferee that are converted by the Borrower or such Restricted
Subsidiary into cash within 20 days of the applicable Asset Sale (to the extent
of the cash received), shall be deemed to be cash for purposes of this
provision.
Section 4.11. Transactions with Affiliates. The Borrower shall not,
and shall not permit any of its Restricted Subsidiaries to, make any payment to,
or sell, lease, transfer or otherwise dispose of any of its properties or assets
to, or purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate (each of the foregoing, an "Affiliate
Transaction"), unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Borrower or the relevant Restricted Subsidiary than those
that would have been obtained in a comparable transaction by the Borrower or
such Restricted Subsidiary with an unrelated Person and (ii) the Borrower
delivers to the Trustee (a) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving aggregate consideration in excess of
$1.0 million, a resolution of the Board of Directors set forth in an Officers'
Certificate certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and
46
(b) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $5.0 million, an
opinion as to the fairness to the Holders of such Affiliate Transaction from a
financial point of view issued by an accounting, appraisal or investment banking
firm of national standing. Notwithstanding the foregoing, the following items
shall not be deemed to be Affiliate Transactions: (i) any employment
arrangements with any executive officer of the Borrower or a Restricted
Subsidiary that is entered into by the Borrower or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with compensation
arrangements of similarly situated executive officers at comparable companies
engaged in Permitted Businesses, (ii) transactions between or among the Borrower
and/or its Restricted Subsidiaries, (iii) payment of directors fees in an
aggregate annual amount not to exceed $25,000 per Person, (iv) Restricted
Payments that are permitted by the provisions of Section 4.7, (v) the issuance
or sale of Equity Interests (other than Disqualified Stock) of the Borrower, and
(vi) transactions pursuant to the provisions of the Governance, Agreement, the
Rights Agreement, the Stockholders' Agreement, the CTSH Shareholders' Agreement,
the CTI Services Agreement, the CTI Operating Agreement and the Crown Transition
Agreements as the same are in effect on the date hereof.
Section 4.12. Liens. The Borrower shall not, and shall not permit
any of its Restricted Subsidiaries to, directly or indirectly, create, incur,
assume or suffer to exist any Lien securing Indebtedness or trade payables on
any asset now owned or hereafter acquired, or any income or profits therefrom or
assign or convey any right to receive income therefrom, except Permitted Liens.
Section 4.13. Business Activities. The Borrower shall not, and
shall not permit any Subsidiary to, engage in any business other than Permitted
Business, except to such extent as would not be material to the Borrower and its
Subsidiaries taken as a whole.
Section 4.14. Corporate Existence. Subject to Section 4.19 hereof,
the Borrower shall do or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Restricted Subsidiaries, in
accordance with the respective organizational documents (as the same may be
amended from time to time) of the Borrower or any such Restricted Subsidiary and
(ii) the rights (charter and statutory), licenses and franchises of the Borrower
and its Subsidiaries; provided, however, that the Borrower shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any of its Restricted Subsidiaries, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Borrower and its Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Lenders.
Section 4.15. Offer to Prepay Upon a Change of Control.
(a) Upon the occurrence of a Change of Control, each Lender will have
the right to require the Borrower to prepay all or any part of the principal
amount of such Lender's Loans pursuant to the offer described below (the "Change
of Control Offer") at a prepayment price in cash equal to 100% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the date of prepayment (the "Change of Control Payment"). Within 30 days
following any Change of Control, the Borrower will mail a notice to each Lender
describing the transaction or transactions that constituted the Change of
Control and offer to repay the Loans on the date specified in such notice, which
date shall be no earlier than 30 days and no later than 60 days from the date
such notice is mailed (the "Change of Control Payment Date"), pursuant to the
procedures set forth below.
47
(b) Notice of a Change of Control Offer shall be mailed by the
Borrower to the Lenders at their addresses set forth in the Loan Register. The
Change of Control Offer shall remain open from the time of mailing until the
Change of Control Payment Date. The notice shall be accompanied by a copy of
the most recent reports furnished pursuant to Section 4.4(b)(i) and (ii). The
notice shall contain all instructions and materials necessary to enable such
Lenders to elect to be prepaid pursuant to the Change of Control Offer. Lenders
electing to have a Loan repaid will be required to surrender the applicable Term
Note, with an appropriate form duly completed, to the Borrower at the address
specified in the notice at least three Business Days prior to the repayment
date.
(c) The Borrower shall not be required to prepay Loans pursuant to
this Section if a third party makes an offer to prepay applicable Loans in the
manner, at the times and otherwise in compliance with the requirements set forth
in this covenant applicable to an offer to prepay Loans made by the Borrower and
purchases all Term Notes validly tendered and not withdrawn under such offer.
(d) On the Change of Control Payment Date, the Borrower shall (i)
repay all Loans or portions thereof of each Lender that properly elected
repayment thereof pursuant to the Change of Control Offer and were received by
the Borrower for cancellation, (ii) pay the Change of Control Payment for each
such Loan (or portion thereof) elected to be repaid and (iii) deliver to each
such Lender a new Term Note equal in principal amount (excluding premiums, if
any) to the unpurchased portion of the corresponding Term Note surrendered, if
any. The Borrower will notify the remaining Lenders of the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Payment Date.
Section 4.16. Limitation on Sale and Leaseback Transactions.
The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any sale and leaseback transaction; provided that
the Borrower or any of its Restricted Subsidiaries may enter into a sale and
leaseback transaction if (i) the Borrower or such Restricted Subsidiary, as
applicable, could have (a) incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback transaction pursuant to
the Debt to Adjusted Consolidated Cash Flow Ratio test set forth in the first
paragraph of Section 4.9 and (b) incurred a Lien to secure such Indebtedness
pursuant to Section 4.12, (ii) the gross cash proceeds of such sale and
leaseback transaction are at least equal to the fair market value (as determined
in good faith by the Board of Directors) of the property that is the subject of
such sale and leaseback transaction and (iii) the transfer of assets in such
sale and leaseback transaction is permitted by Section 4.10, and the Borrower
applies the proceeds of such transaction in compliance with, Section 2.4.
Section 4.17. Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries. The Borrower (i) shall not and shall not permit any
Restricted Subsidiary of the Borrower to, transfer, convey, sell, lease or
otherwise dispose of any Equity Interests in any Restricted Subsidiary of the
Borrower to any Person (other than the Borrower or a Wholly Owned Restricted
Subsidiary of the Borrower) and (ii) shall not permit any Restricted Subsidiary
of the Borrower to issue any of its Equity Interests (other than, if necessary,
shares of its Capital Stock constituting directors' qualifying shares) to any
Person other than to the Borrower or a Wholly Owned Restricted Subsidiary of the
Borrower, unless, in each such case: (a) as a result of such transfer,
conveyance, sale, lease or other disposition or issuance such Restricted
Subsidiary no longer constitutes a Subsidiary and (b) the cash Net Proceeds from
such transfer, conveyance, sale, lease or other disposition or issuance are
applied in accordance with Section 2.4.
48
Section 4.18. Limitation on Issuances of Guarantees of Indebtedness.
The Borrower shall not permit any Restricted Subsidiary, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Borrower unless such Subsidiary simultaneously executes and
delivers a supplement to this Agreement providing for the Guarantee of the
payment of the Term Notes by such Subsidiary, which Guarantee shall be senior to
or pari passu with such Subsidiary's Guarantee of or pledge to secure such other
Indebtedness. Notwithstanding the foregoing, any such Guarantee by a Subsidiary
of the Term Notes shall provide by its terms that it shall be automatically and
unconditionally released and discharged upon any sale, exchange or transfer, to
any Person other than a Subsidiary of the Borrower, of all of the Borrower's
stock in, or all or substantially all the assets of, such Subsidiary, which
sale, exchange or transfer is made in compliance with the applicable provisions
of this Agreement.
Section 4.19. Merger; Sale of All or Substantially All Assets.
(a) The Borrower shall not consolidate or merge with or into (whether
or not the Borrower is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its properties
or assets in one or more related transactions, to another corporation, Person or
entity unless (i) the Borrower is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Borrower) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia, (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Borrower) or the entity or Person to
which such sale, assignment, transfer, lease, conveyance or other disposition
shall have been made assumes all the obligations of the Borrower under the Term
Notes and this Agreement pursuant to a supplemental agreement in a form
reasonably satisfactory to the Administrative Agents, (iii) immediately after
such transaction, no Default exists and (iv) except in the case of a merger of
the Borrower with or into a Wholly Owned Restricted Subsidiary of the Borrower
and except in the case of a merger entered into solely for the purpose of
reincorporating the Borrower in another jurisdiction, the Borrower or the entity
or Person formed by or surviving any such consolidation or merger (if other than
the Borrower), or to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made shall, at the time of such transaction
and after giving pro forma effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Debt to Adjusted
Consolidated Cash Flow Ratio test set forth in the first paragraph of Section
4.9.
(b) Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Borrower in accordance with Section 4.19(a) hereof, the
successor corporation formed by such consolidation or into or with which the
Borrower is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be substituted for
(so that from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Agreement referring to
the "Borrower" shall refer instead to the successor corporation and not to the
Borrower), and may exercise every right and power of the Borrower under this
Agreement with the same effect as if such successor Person had been named as the
Borrower herein, provided, however, that and the predecessor Borrower shall not
be relieved from the obligation to pay the principal of and interest on the Term
Notes except in the case of a sale of all of the Borrower's assets that meets
the requirements of Section 4.19(a) hereof.
49
Section 4.20. Inspection Rights.
The Borrower shall, and shall cause each of its Subsidiaries to,
permit the Lenders or any of their respective representatives to visit and
inspect any of its properties, to examine and make abstracts from any of its
books and records and to discuss its businesses, finances and accounts with its
executive officers and, subject to the right of the Borrower's representatives
to participate in any such discussion, with their independent public
accountants, all upon reasonable notice and at such reasonable times and as
often as may reasonably be desired.
Section 4.21. Special Rights.
(a) For so long as any Loans or Exchange Notes are held by West
Street, the Borrower shall, and shall cause each of its Subsidiaries to,
promptly provide West Street with such information concerning the businesses,
properties or financial condition of the Credit Parties and such Subsidiaries as
West Street may from time to time request. In that connection, the Borrower
shall, and shall cause each of its Subsidiaries to:
(i) keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation
to its business and activities; and
(ii) permit West Street or any of its representatives to consult with
the Borrower and its Subsidiaries with respect to their businesses and make
proposals with respect to such businesses and meet with the respective
executive officers and directors of the Borrower and its Subsidiaries with
respect to such proposals.
(b) For so long as any Loans or Exchange Notes are held by West
Street, the Borrower shall, and shall cause each of its Subsidiaries to, upon
prior reasonable request, invite West Street or any of its representatives to
attend each regular, special or other meeting of its Board of Directors in a
nonvoting observer capacity and in this respect shall, upon prior reasonable
request, give West Street or such representative copies of all notices, minutes,
consents and other materials that it provides to its directors. West Street or
such representative may participate in any and all discussions of matters
brought to the Board of Directors. The Borrower shall and shall cause each of
its Subsidiaries to allow West Street or any such representative of West Street
to attend such meetings by means of conference call or other communications
equipment utilized by any other person participating in such meetings.
Notwithstanding the foregoing, the Borrower reserves the right to exclude West
Street and its representatives from access to any material or meeting or portion
thereof if the Borrower believes upon advice of counsel that such exclusion is
reasonably necessary to preserve the attorney-client privilege, to protect
highly confidential proprietary information or for other similar valid business
reasons.
(c) In addition to the provisions of Section 12.3, (i) any amendment
to the provisions of this Section 4.21 shall require the consent of West Street
at any time that West Street holds Loans and/or Notes and (ii) for so long as
West Street holds Loans and/or Notes having an aggregate principal amount equal
to at least 25% of the aggregate principal amount of Term Loans originally
funded by West Street under this Agreement, any amendment to the provisions of
Section 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19 and
4.20 shall require the consent of West Street at any time that West Street holds
any Loans or Exchange Notes.
50
ARTICLE V.
CONDITIONS
The obligation of each of the Lenders to make Term Loans is subject to
(i) the representations and warranties of the Borrower in Article III being
true, correct and complete in all respects on and as of the Closing Date to the
same extent as though made on and as of the Closing Date, (ii) on or prior to
the Closing Date, the Borrower having performed and complied with all covenants
and conditions to be performed and observed by it on or prior to the Closing
Date and (iii) the prior or concurrent satisfaction of each of the conditions
set forth below; provided, however, that notwithstanding such conditions, no
Lender may default in its obligations to make Term Loans hereunder solely
because of (a) the failure by another Lender to deem a condition satisfied, or
(b) the failure by another Lender to make Term Loans hereunder:
Section 5.1. Corporate and Other Proceedings. On or before the
Closing Date, all corporate and other proceedings taken or to be taken in
connection with the Transactions and all documents incidental thereto not
previously found acceptable by the Administrative Agents shall be reasonably
satisfactory in form and substance to the Administrative Agents, and the
Administrative Agents shall have received on behalf of the Lenders the following
items, each of which shall be in form and substance satisfactory to the
Administrative Agents and, unless otherwise noted, dated the Closing Date:
(a) a certified copy of the Borrower's charters, together with a
certificate of status, compliance, good standing or like certificate with
respect to the Borrower issued by the appropriate government officials of the
jurisdiction of its formation and of each jurisdiction in which the Borrower
owns any material assets or carries on any material business, each to be dated a
recent date prior to the Closing Date;
(b) a copy of the Borrower's bylaws, in each case certified as of the
Closing Date by its Secretary or one of its Assistant Secretaries;
(c) resolutions of the Borrower's Boards of Directors approving and
authorizing the execution, delivery and performance of this Agreement, each of
the other Transaction Documents and any other documents, instruments and
certificates required to be executed by the Borrower in connection herewith or
therewith and approving and authorizing the execution, delivery and payment of
the Term Notes and the Exchange Notes and the consummation of the Transactions,
each certified as of the Closing Date by its Secretary or one of its Assistant
Secretaries as being in full force and effect without modification or amendment;
(d) signature and incumbency certificates of the Borrower's Officers
executing this Agreement and the Term Notes and any other documents executed in
connection therewith;
(e) executed copies of this Agreement and the Term Notes, drawn to the
order of the Lenders;
(f) an Officers' Certificate from the Borrower in form and substance
satisfactory to the Administrative Agents to the effect that (i) the
representations and warranties of the Borrower in Article III are true, correct
and complete in all respects on and as of the Closing Date to the same extent as
though made on and as of that date, (ii) on or prior to the Closing Date, the
Borrower has performed and complied with all covenants and conditions hereunder
to be performed and observed by it on or prior
51
to the Closing Date and (iii) all conditions to the consummation of the relevant
Transactions have been satisfied on the terms set forth in the documentation
relating thereto and have not been waived or amended without the prior written
consent of the Administrative Agents;
(g) true and correct copies of the final form of each of: (i) the
Powertel Acquisition Agreement, which shall be reasonably satisfactory in form
and substance to each of the Lenders and which shall provide for an aggregate
consideration payable by the Borrower of $275 million, of which only $50 million
is required to be paid in escrow on the Powertel Funding Date and (ii) the draft
▇▇▇▇ South Lease, which shall be reasonably satisfactory in form and substance
to each of the Lenders and which shall provide for an aggregate cash
consideration payable by the Borrower of $430 million, of which only $50 million
is required to be paid in escrow on the ▇▇▇▇ South Funding Date; and
(h) true and correct copies of each of the other Transaction
Documents, each of which shall be reasonably satisfactory in form and substance
to each of the Lenders.
Section 5.3. [Reserved.]
Section 5.3. Absence of Certain Changes.
There shall not have occurred or become known to the Lenders any event
or events, adverse condition or change in or affecting the Borrower subsequent
to September 30, 1998 that, individually or in the aggregate, (i) could have a
Material Adverse Effect, (ii) has, or may be reasonably expected to have, any
materially adverse effect upon the validity or enforceability of this Agreement
or any of the Transaction Documents or (iii) materially impairs the ability of
the Borrower to consummate the Loan or to perform its Obligations under the
Transaction Documents. For purposes of this Section 5.3, "Material Adverse
Effect" shall mean the result of one or more events, changes or effects which,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on (i) the business, results of operations, property,
condition (financial or otherwise), management or prospects of the Borrower and
its subsidiaries, taken as a whole.
Section 5.4. Market Disruption. There shall not have occurred any
disruption or adverse change, as determined by the Arrangers in their sole
discretion, in the financial or capital markets generally, or in the markets for
term loan syndication, high yield debt or equity securities in particular or
affecting the syndication or funding of term loans (or the refinancing thereof)
that the Arrangers shall reasonably determine makes it impracticable to
consummate the syndication of the Term Loans or the Proposed Offerings.
Section 5.5. Financial Statements. Each of the Lenders shall have
received audited financial statements for the one-, two-, or three-year period,
as applicable, immediately preceding the Closing Date and any appropriate
unaudited financial statements for any interim period or periods of the
Borrower, the Powertel Towers and the ▇▇▇▇ South Towers and all other recent or
probable acquisitions (including pro forma financial statements), to the extent
such financial statements are required by, and all meeting the requirements of,
Regulation S-X for Form S-1 registration statements (including, without
limitations, the availability of audited financial statements for the Powertel
Towers) and all such financial statements shall be reasonably satisfactory in
form and substance to each of the Lenders. Once approved by the Lenders, all
such financial statements shall be added to Schedule 3.10(a), Schedule 3.10(b),
Schedule 3.10(c), Schedule 3.10(d) or Schedule 3.10(e), as appropriate, and
shall become subject to the Borrower's representations in Section 3.10.
52
Section 5.6. Litigation, etc. There shall not exist any action,
suit, investigation, litigation or proceeding pending or threatened in any court
or before any arbitrator or governmental authority that, in the opinion of the
Lenders, affects the Powertel Acquisition, the ▇▇▇▇ South Lease, the financing
thereof or any of the other transactions contemplated hereby, or that could have
a Material Adverse Effect on the Borrower, the Powertel Acquisition, the ▇▇▇▇
South Lease, the financing thereof or any of the transactions contemplated
hereby.
Section 5.7. Payment of Fees and Expenses. All fees and expenses
due to the Lenders, ▇▇▇▇▇▇▇ Sachs Credit Partners L.P., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Salomon Brothers Holding Company Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Credit Suisse
First Boston, Credit Suisse First Boston Corporation or the Administrative
Agents on or before the Closing Date in connection with the Term Loans, pursuant
to the Commitment Letter, the Fee Letter, the Engagement Letter or otherwise,
shall have been paid in full.
Section 5.8. Escrow Agreement. The Borrower and the Escrow Agent
shall have entered into the Escrow Agreement and a fully executed copy of the
Escrow Agreement shall have been delivered to each of the Lenders.
Section 5.9. Exchange Notes. The Borrower and the Exchange Note
Trustee shall have entered into the Exchange Note Indenture and a fully executed
copy of the Exchange Note Indenture shall have been delivered to each of the
Lenders. At least $100 million in aggregate principal amount of Exchange Notes
shall have been issued by the Borrower into escrow and delivered to the Escrow
Agent as contemplated by the Escrow Agreement.
Section 5.10. Registration Rights Agreement. The Borrower and the
Arrangers shall have entered into the Registration Rights Agreement and a fully
executed copy of the Registration Rights Agreement shall have been delivered to
each of the Lenders.
Section 5.11. Delivery of Opinions. The Arrangers shall have
received originally executed copies of one or more favorable written opinions of
(i) Cravath, Swaine & ▇▇▇▇▇, counsel for the Borrower, in the form of Exhibit F-
1 hereto and addressed to the Lenders, (ii) ▇▇▇▇▇▇ ▇▇▇▇, in the form of Exhibit
F-2 hereto and addressed to the Lenders, (ii) General Counsel of the Borrower,
in the form of Exhibit F-3 hereto and addressed to the Lenders and (iv) such
other opinions of counsel and such certificates or opinions of accountants,
appraisers or other professionals as the Arrangers shall have reasonably
requested.
Section 5.12. Solvency. The Arrangers shall have received
originally executed copies of a certificate of the Chief Financial Officer of
the Borrower, in form and substance satisfactory to the Administrative Agents,
with appropriate opining that, after giving effect to the making of the Loans,
the Borrower and its Subsidiaries will be Solvent, and the Arrangers shall have
received such other reasonable and appropriate factual information and expert
advice supporting the conclusions reached in such opinion as the Arrangers may
reasonably request, all in form and substance satisfactory to the Arrangers.
Section 5.13. No Breach; No Default. The Borrower shall not be in
breach or violation of any of its obligations under the Engagement Letter or the
Fee Letter and each of the Engagement Letter and the Fee Letter shall be in full
force and effect. In addition, No event shall have occurred and be continuing or
would result from the consummation of the Transactions that would constitute an
Event of Default.
53
Section 5.14. Special Conditions.
(a) The Powertel Term Loan will be subject to the condition that the
Powertel Acquisition Agreement shall have been (i) fully executed and delivered
in form and substance reasonably satisfactory in all respects to the Lenders and
(ii) the representations and warranties contained therein shall be true and
correct in all material respects.
(b) The ▇▇▇▇ South Term Loan shall also be subject to the condition
that the ▇▇▇▇ South Lease shall have been (i) fully executed and delivered in
form and substance reasonably satisfactory in all respects to the Lenders and
(ii) the representations and warranties contained therein shall be true and
correct in all material respects.
ARTICLE VI.
TRANSFER OF THE LOANS, THE INSTRUMENTS EVIDENCING SUCH LOANS AND THE SECURITIES;
REPRESENTATIONS OF LENDERS; PARTICIPATIONS
Section 6.1. Transfer of the Loans, the instruments evidencing the
Loans and the Securities. Each Lender acknowledges that none of the Loans,
the instruments evidencing such Loans and the Securities have been registered
under the Securities Act and represents and agrees that it is acquiring the
Loans, the instruments evidencing such Loans and the Securities for its own
account and that it will not, directly or indirectly, transfer, sell, assign,
pledge or otherwise dispose of its Loans, the instruments evidencing such Loans
or the Securities (or any interest therein) unless such transfer, sale,
assignment, pledge or other disposition is made (i) pursuant to an effective
registration statement under the Securities Act or (ii) pursuant to an available
exemption from registration under, or in a transaction that is not subject to,
the Securities Act. Each Lender represents, warrants, covenants and agrees to
and with the Borrower that it is either (i) a qualified institutional buyer
within the meaning of Rule 144A under the Securities Act acting for its own
account or the account of one or more other qualified institutional buyers, and
is aware that the Borrower may rely upon the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A thereunder or (ii) an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act. Each of the Lenders acknowledges that the
instruments evidencing the Securities will bear a legend restricting the
transfer thereof in accordance with the Securities Act.
Subject to the provisions of the previous paragraph, the Borrower
agrees that, with the consent of the Administrative Agents, each Lender will be
free to sell or transfer all or any part of the Loans, the instruments
evidencing the Loans or the Securities (including, without limitation,
participation interest in the Loans) to any third party and to pledge any or all
of the Securities to any commercial bank or other institutional lender.
Section 6.2. Permitted Assignments. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time assign
to one or more banks or other entities ("Purchasers") all or any part of its
rights and obligations hereunder and under the Loan Documents. Such assignment
shall be made pursuant to an Assignment and Acceptance substantially in the form
of Exhibit A or in such other form as may be agreed to by the parties thereto.
The consent of the Borrower and the Administrative Agents shall be required
prior to an assignment becoming effective with respect to a Purchaser which is
not a Lender, an Affiliate of a Lender (including West Street, in the case of
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.) or a Federal Reserve Bank; provided,
however, that if an Event of Default has occurred and is continuing, the consent
of the Borrower shall not be required. Such consent shall not be unreasonably
withheld or delayed.
54
Section 6.3. Permitted Participants; Effect. (a) Upon notice
thereof to the Borrower, any Lender may, in the ordinary course of its business
and in accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in any Loan owing to
such Lender, any Term Note held by such Lender, any Commitment of such Lender or
any other interest of such Lender under the Loan Documents; provided that such
Lender retain all voting rights with respect to such participating interests on
all matters other than such matters that require the consent of each Lender
under this Agreement. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Loans and the holder of any Term Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable by the
Borrower under this Agreement shall be determined as if such Lender had not sold
such participating interests, and the Borrower and the Administrative Agents
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under the Loan Documents.
(b) Each Lender shall retain the sole right to approve, without the
consent of any Participant, any amendment, modification or waiver of any
provision of the Loan Documents other than any amendment, modification or waiver
with respect to any Loan or Commitment in which such Participant has an interest
which forgives principal, interest or fees or reduces the interest rate or fees
payable with respect to any such Loan or Commitment, extends the Maturity Date,
postpones any date fixed for any regularly scheduled payment of principal of, or
interest or fees on, any such Loan or Commitment or releases any guarantor of
any such Loan or releases all or substantially all of the collateral, if any,
securing any such Loan.
(c) The Borrower agrees that each Participant shall be deemed to have
the right of setoff provided in Section 2.10 in respect of its participating
interest in amounts owing under the Loan Documents to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
the Loan Documents, provided that each Lender shall retain the right of setoff
provided in Section 2.10 with respect to the amount of participating interests
sold to each Participant. The Lenders agree to share with each Participant, and
each Participant, by exercising the right of setoff provided in Section 2.10,
agrees to share with each Lender, any amount received pursuant to the exercise
of its right of setoff, such amounts to be shared in accordance with Section
2.10 as if each Participant were a Lender.
Section 6.4. Dissemination of Information. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries; provided, however, that any records, documents, properties or
information that are designated by the Borrower as confidential at the time of
delivery of such records, documents, properties or information shall be kept
confidential by each Lender and each Transferee, unless (i) such records,
documents, properties or information are in the public domain or otherwise
publicly available (other than as a result of a breach of this Section 6.4),
(ii) disclosure of such records, documents, properties or information is
required by court or administrative order or (iii) disclosure of such records,
documents, properties or information, in the written opinion of counsel to such
Lender or Transferee, is otherwise required by law (including, without
limitation, pursuant to the requirements of the Securities Act).
55
Section 6.5. Tax Treatment. If any interest in any Loan Document
is transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 2.9.
Section 6.6. Replacement Securities Upon Transfer or Exchange. Upon
surrender of any Securities by any Lender in connection with any permitted
transfer or exchange, the Borrower will execute and deliver in exchange therefor
a new Security or Securities of the same aggregate tenor and principal amount,
payable to the order of such Persons and in such denominations as such Lender
may request. The Borrower may require (i) satisfactory indemnification or (ii)
payment by such Lender of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer.
Section 6.7. Register. The Administrative Agents on behalf of the
Borrower shall maintain a register of the principal amount of the Loans held by
each Lender and any interest due and payable with respect thereto. The entries
in the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agents and the Lenders shall treat each Person
whose name is recorded in the register as the owner of a Loan, a Term Note or
Exchange Note hereunder as the owner thereof for all purposes of this Agreement.
The Administrative Agents will allow any Lender to inspect and copy such
register at each Administrative Agent's principal place of business during
normal business hours.
ARTICLE VII.
EVENTS OF DEFAULT
Section 7.1. Events of Default. The occurrence of any one or more
of the following events shall constitute an "Event of Default":
(a) the Borrower defaults in the payment when due of interest on the
Term Loans and such default continues for a period of 10 (or, from and after the
Anniversary Date, 30) days;
(b) the Borrower defaults in the payment when due of principal of or
premium, if any, on the Term Loans when the same becomes due and payable at
maturity, upon redemption (including in connection with an offer to purchase) or
otherwise;
(c) any representation or warranty made or deemed made by the Borrower
or any of its Subsidiaries herein or that is contained in any certificate,
document or financial or other statement furnished by any of them to the Lenders
at any time under or in connection with any Transaction Document shall prove to
have been incorrect in any material respect on or as of the date made or deemed
made;
(d) the Borrower fails to comply with any of the provisions of Section
2.4, 4.15 or 4.19 hereof;
(e) the Borrower fails to observe or perform any other covenant,
representation, warranty or other agreement in this Indenture or the Term Loans
for 30 days after notice to the Borrower by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Term Loans then outstanding
voting as a single class;
56
(f) a default occurs under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Borrower or any of its Significant
Subsidiaries (or the payment of which is guaranteed by the Borrower or any of
its Significant Subsidiaries), whether such Indebtedness or guarantee now
exists, or is created after the date of this Indenture, which default (a) is
caused by a failure to pay principal of or premium, if any, or interest on such
Indebtedness prior to the expiration of the grace period provided in such
Indebtedness on the date of such default (a "Payment Default") or (b) results in
the acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of such Indebtedness, under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates $5
million or more;
(g) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Borrower or
any of its Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary and such judgment or
judgments remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $5.0 million;
(h) the Borrower or any of its Restricted Subsidiaries pursuant to or
within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Borrower or any Restricted Subsidiary
in an involuntary case;
(ii) appoints a Custodian of the Borrower or any Restricted Subsidiary
or for all or substantially all of the property of the Borrower or any
Restricted Subsidiary; or
(iii) orders the liquidation of the Borrower or any Restricted
Subsidiary;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 7.2. Acceleration. If any Event of Default (other than an
Event of Default specified in Section 7.1(h) or 7.1(i) with respect to the
Borrower, any Significant Subsidiary or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary) occurs and is continuing,
the Lenders holding at least 25% in aggregate principal amount of the then
outstanding Loans may, by written notice to the Borrower, declare the unpaid
principal of and any accrued and
57
unpaid interest and fees on all of the Loans to be immediately due and payable.
Upon such declaration, all Obligations in respect of the Loans shall become
immediately due and payable immediately. Notwithstanding the foregoing, if an
Event of Default specified in Section 7.1(h) or 7.1(i) with respect to the
Borrower, any Significant Subsidiary or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary occurs, all Obligations in
respect of the Loans shall ipso facto become and be immediately due and payable
without any declaration, notice or other act on the part of any Lender. The
Majority Lenders by written notice to the Borrower may on behalf of all Lenders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
Section 7.3. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Lenders is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent or subsequent assertion or employment of any
other appropriate right or remedy.
Section 7.4. Delay or Omission Not Waiver. No delay or omission by
any Lender to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article VII or by law to the Lenders may be exercised from time to time, and as
often as may be deemed expedient, by the Lenders.
Section 7.5. Waiver of Past Defaults. Subject to Section 12.3, the
Majority Lenders by written notice to the Borrower may (i) rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal or interest that has become due solely because of the acceleration)
have been cured or waived and (ii) waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal of, premium, if any, or interest on, the Term
Loans (including in connection with an offer to purchase). Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured for every purpose of this Agreement; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 7.6. Rights of Lenders To Receive Payment. Notwithstanding
anything to the contrary contained in this Agreement, the right of any Lender to
receive payment of principal of, premium, if any, and interest on the Loans and
Term Notes held by such Lender, on or after the respective due dates expressed
in this Agreement or the Term Notes, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Lender.
ARTICLE VIII.
PERMANENT SECURITIES
Section 8.1. Permanent Securities. The Borrower shall comply with
its agreements in this Agreement, the Fee Letter and the Engagement Letter with
respect to the proposed issuance and sale of the Permanent Securities in the
Proposed Offerings and the repayment of the Loans with all or a portion of the
net proceeds therefrom.
58
ARTICLE IX.
TERMINATION
Section 9.1. Termination.
(a) the Powertel Commitments hereunder shall terminate on the earlier
of (A) the date on which the Borrower informs the Lenders that it has decided
not to proceed with the Powertel Acquisition, (B) the date on which the Powertel
Acquisition Agreement is terminated in accordance with its terms or (C) the date
that is ninety days following the date of the Commitment Letter;
(b) the ▇▇▇▇ South Commitments hereunder shall terminate in the
earlier of (A) the date on which the Borrower informs the Lenders that it has
decided not to proceed with the lease or sublease of communications towers
currently owned or leased by BellSouth Mobility, (B) the date on which the ▇▇▇▇
South Letter Agreement and the ▇▇▇▇ South Lease, if applicable, are terminated
(other than as a result of the entry into the related definitive documentation)
in accordance with their terms or (C) the date that is ninety days following the
date of the Commitment Letter.
Section 9.2. Survival of Certain Provisions. If this Agreement is
terminated pursuant to this Article IX, such termination shall be without
liability of any party to any other party, except that, whether or not the
transactions contemplated by this Agreement are consummated, (i) the Obligations
of the Borrower to reimburse the Lenders for all of their out-of-pocket expenses
pursuant to Section 12.1 and the Engagement Letter and (ii) the indemnity
provisions contained in Article X shall, in each case, remain operative and in
full force and effect.
ARTICLE X.
INDEMNITY
Section 10.1. Indemnification. In the event that any of the
Lenders or the Administrative Agents (each, an "Indemnified Party") becomes
involved in any capacity in any action, proceeding or investigation brought by
or against any Person, including stockholders of the Borrower, in connection
with or as a result of either this arrangement or any matter referred to in this
Agreement, the Borrower periodically will reimburse such Indemnified Party for
its legal and other expenses (including the cost of any investigation and
preparation) incurred in connection therewith. The Borrower also will indemnify
and hold each Indemnified Party harmless against any and all losses, claims,
damages or liabilities to any such Person in connection with or as a result of
either this arrangement or any matter referred to in this Agreement, except to
the extent that any such loss, claim, damage or liability results from the gross
negligence or bad faith of such Indemnified Party in performing the services
that are the subject of this Agreement. If for any reason the foregoing
indemnification is unavailable to any Indemnified Party or insufficient to hold
it harmless, then the Borrower shall contribute to the amount paid or payable by
such Indemnified Party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect the relative economic interests of
the Borrower and its stockholders on the one hand and such Indemnified Party on
the other hand in the matters contemplated by this Agreement as well as the
relative fault of the Borrower, on the one hand, and such Indemnified Party, on
the other hand, with respect to such loss, claim, damage or liability and any
other relevant equitable considerations. The reimbursement, indemnity and
contribution obligations of the Borrower under this Section 10.1 shall be in
addition to any liability which the Borrower may otherwise have, shall extend
upon the same terms and conditions to any affiliate of any Indemnified Party and
the partners, directors, agents, employees and controlling persons (if any), as
the case may be, of such Indemnified Party and any such affiliate, and shall be
binding upon and inure to the benefit of any successors, assigns, heirs and
59
personal representatives of the Borrower, such Indemnified Party, any such
affiliate and any such Person. Any right to trial by jury with respect to any
action or proceeding arising in connection with or as a result of either this
arrangement or any matter referred to in the Letters is hereby waived by the
parties hereto. The provisions of this Section 10.1 shall survive any
termination or completion of the arrangement provided by this Agreement.
Section 10.2. Counsel. Promptly after receipt by an Indemnified
Party of notice of the commencement of any proceedings, such Indemnified Party
will, if a claim in respect thereof is to be made against the Borrower, notify
the Borrower in writing of the commencement thereof; provided that (i) the
omission so to notify the Borrower will not relieve it from any liability that
it may have hereunder except to the extent it has been materially prejudiced by
such failure and (ii) the omission so as to notify the Borrower will not relieve
it from any liability that it may have to an Indemnified Party otherwise than on
account of the indemnity provided for hereunder. In case any such proceedings
are brought against any Indemnified Party and it notifies the Borrower of the
commencement thereof, the Borrower will be entitled to participate therein, and,
to the extent that it may elect by written notice delivered to such Indemnified
Party, to assume the defense thereof, with counsel reasonably satisfactory to
such Indemnified Party; provided that, if the defendants in any such proceedings
include both such Indemnified Party and the Borrower and such Indemnified Party
shall have concluded that there may be legal defenses available to it which are
different from or additional to those available to the Borrower, such
Indemnified Party shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such proceedings
on behalf of such Indemnified Party. Upon receipt of notice from the Borrower to
such Indemnified Party of its election so to assume the defense of such
proceedings and approval by such Indemnified Party of counsel, the Borrower
shall not be liable to such Indemnified Party for expenses incurred by such
Indemnified Party in connection with the defense thereof (other than reasonable
costs of investigation) unless (i) such Indemnified Party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the Borrower shall not be liable for the reasonable expenses of
more than one separate counsel (plus not more than one separate local counsel in
any jurisdiction), approved by the Administrative Agents, representing the
Indemnified Parties who are parties to such proceedings), (ii) the Borrower
shall not have employed counsel reasonably satisfactory to such Indemnified
Party to represent such Indemnified Party within a reasonable time after notice
of commencement of the proceedings, (iii) the Borrower shall have authorized in
writing the employment of counsel for such Indemnified Party or (iv) the use of
counsel chosen by the Borrower to represent such Indemnified Party would present
such counsel with a conflict of interest, and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
Section 10.3. Settlement of Claims. The Borrower agrees that,
neither it nor any of its Subsidiaries will settle, compromise or consent to the
entry of any judgment in any pending or threatened claim, action or proceeding
in respect of which indemnification or contribution could be sought under
Section 10.1 (whether or not any Indemnified Party is an actual or potential
party to such claim, action or proceeding) without the prior written consent of
the Indemnified Parties, unless such settlement, compromise or consent includes
an unconditional release of each Indemnified Party from all liability arising
out of such claim, action or proceeding, which consent shall not be unreasonably
withheld.
Section 10.4. Appearance Expenses. If an Indemnified Party is
requested or required to appear as a witness in any action brought by or on
behalf of or against the Borrower or any Affiliate
60
thereof in which such Indemnified Party is not named as a defendant, the
Borrower agrees to reimburse such Indemnified Party for all reasonable expenses
incurred by it in connection with such Indemnified Party's appearing and
preparing to appear as such a witness, including, without limitation, the
reasonable fees and disbursements of its legal counsel.
Section 10.5. Indemnity for Taxes, Reserves and Expenses.
If, after the date hereof, the adoption of any law or guideline or any
amendment or change in the administration, interpretation or application of any
existing or future law or guideline by any Governmental Entity charged with the
administration, interpretation or application thereof, or the compliance with
any request or directive of any Governmental Entity (whether or not having the
force of law):
(a) subjects any Affected Party to any tax of any kind with respect to
this Agreement or the Term Notes or changes the basis of taxation of
payments of amounts due hereunder or thereunder or with respect to this
Agreement or any of the other Loan Documents, (including, without
limitation, any sales, gross receipts, general corporate, personal
property, privilege or license taxes, and including claims, losses and
liabilities arising from any failure to pay or delay in paying any such tax
(unless such failure or delay results solely from such Affected Party's
negligence or willful misconduct), but excluding (i) Taxes and Other Taxes
covered by Section 2.9 and (ii) any taxes, levies, imposts, deductions,
charges or withholding specifically excluded under Section 2.9(a) (it being
understood that, notwithstanding the foregoing, if any payment obligation
results from the application of this Section 10.5(a), then the provisions
of Section 2.9(f) or 2.9(i) would apply to such extent);
(b) imposes, modifies or deems applicable any reserve (including,
without limitation, any reserve imposed by the Board), special deposit or
similar requirement against assets of the Borrower held by, credit to the
Borrower extended by, deposits of the Borrower with or for the account of,
or other acquisition of funds of the Borrower by, any Affected Party;
(c) shall change the amount of capital maintained or requested or
directed to be maintained by an Affected Party; or
(d) imposes upon an Affected Party any other condition or expense
(including, without limitation, (i) loss of margin and (ii) attorneys' fees
and expenses incurred by officers or employees of an Affected Party (or any
successor thereto) and expenses of litigation or preparation therefor in
contesting any of the foregoing) with respect to this Agreement or any of
the other Loan Documents or the purchase, maintenance or funding of the
Loans by an Affected Party,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, reduce the rate of return on capital of, or impose any
expense (including loss of margin) upon, an Affected Party with respect to this
Agreement, any of the other Loan Documents, the obligations hereunder or
thereunder or the funding of the Loans hereunder, the Affected Party may notify
the Borrower of the amount of such increase, reduction, or imposition, and the
Borrower hereby agrees to pay to the Affected Party the amount the Affected
Party deems necessary to compensate the Affected Party for such increase,
reduction or imposition which determination shall be conclusive. Such amounts
shall be due and payable by the Borrower 15 days after such notice is given.
Section 10.6. Survival of Indemnification. The provisions
contained in this Article X shall remain in full force and effect whether or not
any of the transactions contemplated hereby are
61
consummated and notwithstanding the termination of this Agreement or the payment
in full of all Obligations hereunder.
Section 10.7. Liability Not Exclusive; Payments. The agreements of
each Person in this Article X shall be in addition to any liability that each
may otherwise have. All amounts due under this Article X shall be payable as
incurred upon written demand therefor.
ARTICLE XI.
THE ADMINISTRATIVE AGENTS; THE ARRANGERS
Section 11.1. Appointment. Each Lender hereby irrevocably
designates and appoints each Administrative Agent to act as an agent of such
Lender under this Agreement and the other Loan Documents, and each such Lender
irrevocably authorizes each Administrative Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agents by the terms of this Agreement and the
other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agents shall have no duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender or other Administrative Agents, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agents.
Section 11.2. Delegation of Duties. The Administrative Agents may
execute any of their duties under this Agreement and the other Loan Documents by
or through agents or attorneys-in-fact and shall be entitled to the advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agents shall not be responsible for the negligence or misconduct of any agents
or attorneys in-fact selected by them with reasonable care.
Section 11.3. Exculpatory Provisions. Neither any of the
Administrative Agents nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement or any other Loan Document (except for its own
gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made
by the Borrower or any of its Subsidiaries or any officer thereof contained in
this Agreement or any other Loan Document or in any certificate, report,
statement, opinion or other document referred to or provided for in, or received
by the Administrative Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of the Borrower or any of its Subsidiaries to perform its
obligations hereunder or thereunder. The Administrative Agents shall not be
under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Borrower or any of its Subsidiaries.
Section 11.4. Reliance by the Administrative Agents. The
Administrative Agents shall be entitled to rely, and shall be fully protected in
relying, upon any Term Note, writing, resolution, notice, consent, certificate,
affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without
62
limitation, counsel to the Borrower or any of its Subsidiaries), independent
accountants and other experts selected by the Administrative Agents. The
Administrative Agents may deem and treat the payee of the Term Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agents. The
Administrative Agents shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless they shall
first receive such advice or concurrence of the Majority Lenders as they deem
appropriate or they shall first be indemnified to their satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Administrative
Agents shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance with a
request of the Majority Lenders, and such request and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
Section 11.5. Notice of Default. The Administrative Agents shall
not be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agents have received notice
from a Lender, the Borrower or any of its Subsidiaries referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default." In the event that any of the Administrative
Agents receives such a notice, the Administrative Agents shall give prompt
notice thereof to the Lenders. The Administrative Agents shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Majority Lenders; provided that unless and until the Administrative
Agents shall have received such directions, the Administrative Agents may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Lenders.
Section 11.6. Non-Reliance on the Administrative Agents and Other
Lenders. Each Lender expressly acknowledges that none of the Administrative
Agents nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agents hereafter taken, including any
review of the affairs of the Borrower or any of its Subsidiaries, shall be
deemed to constitute any representation or warranty by the Administrative Agents
to any Lender. Each Lender represents to the Administrative Agents that it has,
independently and without reliance upon the Administrative Agents or any other
Lenders, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition, prospects and credit
worthiness of the Borrower and its Subsidiaries and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Lender confirms
that it is a qualified institutional buyer within the meaning of Rule 144A under
the Securities Act. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agents or any other Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition, prospects and credit
worthiness of the Borrower and its Subsidiaries. Except for notices, reports
and other documents expressly required to be furnished to the Lenders by the
Administrative Agents hereunder, the Administrative Agents shall have no any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, financial or other
condition, prospects or credit worthiness of the Borrower or any of its
Subsidiaries which may come into the possession of the
63
Administrative Agents or any of their respective officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
Section 11.7. Indemnification. The Lenders agree to indemnify each
of the Administrative Agents in its capacity as such (to the extent not
reimbursed by the Borrower or any of its Subsidiaries and without limiting the
obligation of the Borrower and any of its Subsidiaries to do so), ratably
according to their respective Commitments in effect on the date on which
indemnification is sought, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time (include,
without limitation, at any time following the payment of the Loans) be imposed
on, incurred by or asserted against any of the Administrative Agents in any way
relating to or arising out of, the Commitments, this Agreement, any other Loan
Document or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agents under or in connection with any of the foregoing,
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of an Administrative Agent. The agreements in this subsection
shall survive the payment of the Loans and all other Obligations payable
hereunder.
Section 11.8. Administrative Agents, in their Individual Capacities.
Each Administrative Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Borrower as though
such Administrative Agent were not acting in such capacities hereunder and under
the other Loan Documents. With respect to the Loans made or renewed by it and
the Term Note issued to it such Administrative Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Administrative Agent, and the
terms "Lender" and "Lenders" shall include each Administrative Agent in its
individual capacity.
Section 11.9. Successor Administrative Agents. Each Administrative
Agent may resign as Administrative Agent upon 30 days' notice to the Lenders. If
all Administrative Agents shall resign as Administrative Agent under this
Agreement and the other Loan Documents then the Majority Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
(provided that it shall have been approved by the Borrower), shall succeed to
the rights, powers and duties of the Administrative Agents, hereunder. Effective
upon such appointment and approval, the term "Administrative Agents" shall mean
and include such successor agent, and the former Administrative Agents' rights,
powers and duties as Administrative Agent shall be terminated, without any other
or further act or deed on the part of such former Administrative Agents any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent the provisions of
this Article XI shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
Section 11.10. Successor Administrative Agent. Except as expressly
set forth herein, the Arrangers, in their capacity as such, shall have no duties
or responsibilities, and shall incur no liabilities, under this Agreement or the
other Loan Documents.
64
ARTICLE XII.
MISCELLANEOUS
Section 12.1. Expenses; Documentary Taxes. The Borrower agrees to
pay (a) all reasonable out-of-pocket expenses incurred by the Lenders
(including, without limitation, expenses incurred in connection with due
diligence by the Lenders) associated with the preparation, execution and
delivery, administration, waiver, enforcement or modification and enforcement of
the documentation contemplated hereby and (b) the reasonable fees and
disbursements of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, legal counsel to the Lenders, in connection
with the transactions contemplated herein, including in each case those incurred
prior to the date hereof. The Borrower hereby agrees to indemnify the Lenders
against any transfer taxes, documentary taxes, assessments or charges made by
any Governmental Entity by reason of the execution and delivery, or the terms,
of this Agreement or any of the other Loan Documents.
Section 12.2. Notices. All notices and other communications
pertaining to this Agreement or any Term Note shall be in writing and shall be
delivered (a) in Person (with receipt acknowledged), (b) by facsimile (confirmed
immediately in writing by a copy mailed by registered or certified mail, return
receipt requested, postage prepaid, addressed as hereafter set forth), (c) by
registered or certified mail, return receipt requested, postage prepaid, or (d)
by overnight courier, addressed as follows:
(i) If to the Arrangers and/or Administrative Agents, to them
at:
▇▇▇▇▇▇▇ Sachs Credit Partners L.P.
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Salomon Brothers Holding Company Inc.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
65
(ii) If to any Lender, to it at its address set forth on the
signature pages hereto:
(iii) If to the Borrower, to it at:
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other Person or address as shall be furnished in writing delivered to
the other parties in compliance with this Section 12.2.
Section 12.3. Consent to Amendments and Waivers.
(a) Except as provided in Section 4.21 and 12.3(b), this Agreement and
the Term Notes may be amended or supplemented with the consent of the Borrower
and the Majority Lenders and any existing default or compliance with any
provision of this Agreement or the Term Notes may be waived with the consent of
the Majority Lenders. Term Notes held by the Borrower or any of its Affiliates
will not be deemed to be outstanding for purposes of this Section 12.3.
(b) Notwithstanding the provisions of Section 12.3(a) and in addition
to the provisions of Section 4.21, without the consent of each Lender affected
thereby, an amendment or waiver may not: (i) reduce the principal amount of any
Loan, (ii) change the fixed maturity of any Loan, (iii) reduce the rate of or
change the time for payment of interest on any Loan, (iv) waive a Default or
Event of Default in the payment of principal of, or premium, fees or interest,
if any, on the Loans or any other amounts payable under any of the Loan
Documents, (v) make any Loan payable in money other than that stated in the
applicable Loan, (vi) make any change in the provisions of this Agreement
relating to the rights of Lenders to receive (A) prepayments on, or (B) payments
of principal of, premium, if any, or fees or interest on, the Loans, (vii) make
any change to the provisions of Article VII that would adversely affect the
rights of any Lender or (viii) make any change in the foregoing amendment and
waiver provisions.
(c) The Borrower shall not and shall not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Lender for
or as an inducement to any consent, waiver or amendment permitted by Section
12.3(a) unless such consideration is offered to be paid and is paid to all
Lenders that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or amendment.
66
Section 12.4. Parties. This Agreement shall inure to the benefit
of and be binding upon the Borrower, the Affected Parties and each of their
respective successors and assigns. Except as expressly in this Agreement,
nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any other Person any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. Except
as expressly provided in this Agreement, this Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Affected Parties and their respective successors and assigns, and for the
benefit of no other Person.
Section 12.5. New York Law; Submission to Jurisdiction; Waiver of
Jury Trial. THIS AGREEMENT AND THE TERM NOTES SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE BORROWER AND EACH
OF THE LENDERS HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK
STATE COURT SITTING IN NEW YORK CITY (EACH, A "NEW YORK COURT") FOR PURPOSES OF
ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THE TERM NOTES, THIS
AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY. THE BORROWER AND EACH OF THE LENDERS IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM
THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE BORROWER AND EACH OF THE LENDERS IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THE TERM NOTES, THIS AGREEMENT, ANY OF THE OTHER LOAN DOCUMENTS OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.6. Replacement Notes. If any Term Note becomes
mutilated and is surrendered by the applicable Lender to the Borrower, or if any
Lender claims that any of its Term Notes has been lost, destroyed or wrongfully
taken, the Borrower shall execute and deliver to such Lender a replacement Term
Note, upon the delivery by such Lender of an indemnity to the Borrower
reasonably satisfactory to its counsel to save it and any agent of it harmless
in respect of such loss, destruction or wrongful taking with respect to such
Term Note.
Section 12.7. Appointment of Agent For Service.
The Borrower designates and appoints _______ and such other Persons as
may irrevocably agree in writing to serve as their respective agent to receive
on their behalf service of all process in any proceedings in any New York Court,
such service being hereby acknowledged by the Borrower to be effective and
binding in every respect. If any agent appointed by a the Borrower refuses to
receive and forward such service, that the Borrower hereby agrees that service
upon it by mail shall constitute sufficient service.
Section 12.8. Marshalling; Recapture. None of the Administrative
Agents nor any Lender shall be under any obligation to ▇▇▇▇▇▇▇▇ any assets in
favor of the Borrower or any other party or against or in payment of any or all
of the Obligations. To the extent any Lender receives any payment by or on
behalf of the Borrower, which payment or any part thereof is subsequently
invalidated, declared to
67
be fraudulent or preferential, set aside or required to be repaid to the
Borrower or its estate, trustee, receiver, custodian or any other party under
any Bankruptcy Law, state or federal law, common law or equitable cause, then,
to the extent of such payment or repayment, the obligation or part thereof which
has been paid, reduced or satisfied by the amount so repaid shall be reinstated
by the amount so repaid and shall be included within the liabilities of Borrower
to such Lender as of the date such initial payment, reduction or satisfaction
occurred.
Section 12.9. Limitation of Liability. No claim may be made by
the Borrower or any other Person against any Administrative Agent or any Lender
or the Affiliates, directors, officers, employees, attorneys or agents of any of
them for any special, indirect, consequential or punitive damages in respect of
any claim for breach of contract or any theory of liability arising out of or
related to the transactions contemplated by this Agreement or the other Loan
Documents, or any act, omission or event occurring in connection therewith; and
the Borrower hereby waives, releases and agrees not to ▇▇▇ and shall cause each
of its respective Subsidiaries to waive, release or agree not to ▇▇▇ (if
required), upon any claim for any such damages, whether or not accrued and
whether or not known or suspected to exist in its favor.
Section 12.10. Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action or condition is
not permitted by any of such covenants, the fact that it would be permitted by
an exception to, or be otherwise within the limitations of, another covenant
shall not avoid the occurrence of a Default or Event of Default if such action
is taken or condition exists.
Section 12.11. Currency Indemnity. The Borrower acknowledges and
agrees that this is a credit transaction where specification of dollars is of
the essence and dollars shall be the currency of account and payment in all
events. If, pursuant to a judgment or for any other reason, payment shall be
made in another currency and such payment, after prompt conversion to dollars
and transfer to New York City in accordance with normal banking procedures,
falls short of the sum due the Lenders in dollars, the Borrower shall pay the
Lender such shortfall and the Lenders shall have a separate cause of action for
such amount.
Section 12.12. Waiver of Immunity. To the extent that the Borrower
has or hereafter may acquire any immunity from:
(a) the jurisdiction of any court of (i) any jurisdiction in which the
Borrower owns or leases property or assets or (ii) the United States, the
State of New York or any political subdivision thereof; or
(b) from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property and assets, this
Agreement, any Loan Document or actions to enforce judgments in respect of
any thereof,
it hereby irrevocably waives such immunity in respect of its obligations under
the above-referenced document.
Section 12.13. Freedom of Choice. The submission to the
jurisdiction of the courts referred to in this Article XII shall not (and shall
not be construed so as to) limit the right of any Lender to take proceedings
against the Borrower in the courts of any country in which the Borrower has
assets or
68
in any other court of competent jurisdiction nor shall the taking of proceedings
in any one or more jurisdictions preclude the taking of proceedings in any other
jurisdiction (whether concurrently or not) if and to the extent permitted by
applicable law.
Section 12.14. Successors and Assigns. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants and
agreements of the Borrower in this Agreement shall bind their respective
successors and assigns. The Borrower may not assign or transfer any of its
rights or obligations hereunder (by operation of law or otherwise) without the
prior written consent of the Majority Lenders. Any assignment by any Lender must
be made in compliance with Article VI hereof.
Section 12.15. Merger. This Agreement constitutes the entire
contract among the parties relating to the subject matter hereof and supersedes
any and all previous agreements among the parties relating to the subject matter
hereof, except for those provisions in the Fee Letter and the Engagement Letter
that are in addition to the provisions contained herein.
Section 12.16. Severability Clause. In case any provision in this
Agreement or any Term Note shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and such
provision shall be ineffective in such jurisdiction only to the extent of such
invalidity, illegality or unenforceability.
69
Section 12.17. Representations, Warranties and Agreements To Survive
Delivery. All representations, warranties and agreements contained in or
incorporated into this Agreement, or contained in Officers' Certificates
submitted pursuant hereto, shall remain operative and in full force and effect
until all Obligations under all of the Loan Documents have been repaid in full,
regardless of any investigation made by or on behalf of the Lenders or any
controlling Person of the Lenders, or by or on behalf of the Borrower or any
controlling Person of the Borrower, and shall survive delivery of the Term
Notes.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
Crown Castle International Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Executive Vice President and
Chief Financial Officer
70
▇▇▇▇▇▇▇ Sachs Credit Partners L.P. Powertel Commitment: $16,666,666.67
▇▇▇▇ South Commitment: 16,666,666.67
--------------
Total Commitment: $33,333,333.34
By: ▇▇▇▇▇▇▇, Sachs & Co.,
the General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title:
Wire Transfer Instructions:
Name of Bank: Chase Manhattan Bank, N.A.
Address: ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA#: ▇▇▇▇▇▇▇▇▇
For the account of: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Account No.: ▇▇▇-▇-▇▇▇▇▇▇
For further credit to ▇▇▇▇▇▇▇ Sachs Credit Partners L.P.
Reference: Crown Castle International Corp. Term Loans
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone:
71
Salomon Brothers Holding Company Inc. Powertel Commitment: $16,666,666.67
▇▇▇▇ South Commitment: 16,666,666.66
--------------
Total Commitment: $33,333,333.33
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Wire Transfer Instructions
Name of Bank: First National Bank of Chicago
Address: Chicago, IL
ABA# ▇▇▇-▇▇▇-▇▇▇
For the account of Salomon Brothers Inc
Account No.: ▇▇▇▇▇▇▇
For further credit to Salomon Brothers Holding Company Inc
Reference: CROWN CASTLE, Bankloan Dept.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------
Telephone:
----------------
72
Credit Suisse First Boston Powertel Commitment: $16,666,666.66
▇▇▇▇ South Commitment: 16,666,666.67
--------------
Total Commitment: $33,333,333.33
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
Wire Transfer Instructions
Name of Bank: The Bank of New York
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA#: 021 000 018
For the account of CSFB NY Loan Clearing
Account No.: ▇▇▇-▇▇▇▇-▇▇▇
For further credit to Credit Suisse First Boston
Reference: CROWN CASTLE INTERNATIONAL CORP.
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
73
Exhibit A
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Term Loan Agreement, dated as of March 15,
1999 (as amended, supplemented or otherwise modified from time to time, the
"Term Loan Agreement"), by and among Crown Castle International Corp., a
Delaware corporation (the "Borrower"), and ▇▇▇▇▇▇▇ Sachs Credit Partners L.P.,
Salomon Brothers Holding Company Inc. and Credit Suisse First Boston (▇▇▇▇▇▇▇
▇▇▇▇▇ Credit Partners L.P., Salomon Brothers Holding Company Inc. and Credit
Suisse First Boston are herein called the "Lenders"), as Arrangers for the
Lenders (Salomon Brothers Holding Company Inc. and Credit Suisse First Boston in
such capacity, the "Administrative Agents"). Unless otherwise defined herein,
terms defined in the Term Loan Agreement and used herein shall have the meanings
given to them in the Term Loan Agreement.
The Assignor identified on Schedule I hereto (the "Assignor") and the
Assignee identified on Schedule I hereto (the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below), the percentage interest described in Schedule
1 hereto (the "Assigned Interest") in and to the Assignor's rights and
obligations under the Term Loan Agreement (the "Assigned Facilities"), in a
principal amount for the Assigned Facilities as set forth on Schedule I hereto.
2. The Assignor (a) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Term Loan Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Term Loan Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim: (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, any of its Subsidiaries or any other
obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Term Loan Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Term Notes
held by it evidencing the Assigned Facilities and (i) requests that the
Administrative Agents, upon request by the Assignee, exchange the attached Term
Notes for a new Term Note or Term Notes payable to the Assignee and (ii) if the
Assignor has retained any interest in the Assigned Facility, requests that the
Administrative Agents exchange the attached Term Notes for a new Term Note or
Term Notes payable to the Assignor, in each case in amounts which reflect the
assignment being made hereby (and after giving effect to any other assignments
which are effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Term Loan Agreement, and all schedules and exhibits
thereto together with copies of the financial information delivered pursuant to
subsection 3.10 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Administrative Agents or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Term Loan
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agents to take such action as agent on its behalf and to exercise
such powers and discretion under the Term Loan Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agents by the terms thereof,
together with such powers as are incidental thereto; (e) agrees that it will be
bound by the provisions of the Term Loan Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Term
Loan Agreement are required to be performed by it as a Lender; and (f) agrees
that it shall have no recourse against the Assignor with respect to any matters
relating to the Term Loan Agreement, the other Loan Documents or any others
instrument or documents furnished pursuant hereto or thereto.
4. The Assignor hereby assigns to Assignee all of its rights and
obligations under the Fee Letter with respect to the Assigned Interest.
5. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule I hereto (the "Effective
Date"). Following the execution of this Assignment and Acceptance, it will be
delivered to the Administrative Agents for acceptance by them and recording by
the Administrative Agents pursuant to Section 6.7 of the Term Loan Agreement,
effective as of the Effective Date (which shall not, unless otherwise agreed to
by the Administrative Agents, be earlier than five Business Days after the date
of such acceptance and recording by the Administrative Agents).
6. Upon such acceptance and recording, from and after the Effective
Date, the Administrative Agents shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignor for amounts which have accrued to the Effective Date
and to the Assignee for amounts which have accrued subsequent to the Effective
Date. The Assignor and the Assignee shall make all appropriate adjustments in
payments by the Administrative Agents for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
7. From and after the Effective Date, (a) the Assignee shall be a
party to the Term Loan Agreement and the Fee Letter and, to the extent provided
in this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Term Loan Agreement and the Fee Letter.
8. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule I hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor: ____________________________
Name of Assignee: ____________________________
Effective Date of Assignment: ________________
Principal Commitment
Credit Facility Assigned Amount Assigned Commitment Percentage Assigned/1/
$________________ _____ . _________%
1. Calculate the Commitment Percentage that is assigned to at least 9 decimal
places and show as a percentage of the aggregate commitments of all Lenders
[Name of Assignee] [Name of Assignor]
By: ______________________________________ By:________________________________
Name Name:
Title: Title:
Accepted:
Salomon Brothers Holding Company Inc.
By:_____________________
Name:
Title:
Credit Suisse First Boston
By:_____________________
Name:
Title:
By:_____________________
Name:
Title:
as Administrative Agents
Exhibit B
No. I-__ New York, New York
$______________ ______________, _____
SENIOR TERM NOTE
FOR VALUE RECEIVED, the undersigned, Crown Castle International Corp.
(the "Borrower"), promises to pay to the order of
_______________________________, or its registered assigns (the "Holder"), the
principal amount of __________________ Dollars ($_______), and to pay interest
from the date hereof on the unpaid principal amount hereof from time to time
outstanding, at the rates per annum and on the dates specified in that certain
Term Loan Agreement, dated as of March 15, 1999, among the Borrower, ▇▇▇▇▇▇▇
▇▇▇▇▇ Credit Partners L.P., Salomon Brothers Holding Company Inc. and Credit
Suisse First Boston (as amended, restated and/or otherwise modified from time to
time, the "Term Loan Agreement"). Terms used herein and not otherwise defined
have the meanings assigned to them in the Term Loan Agreement.
The unpaid principal balance of this Term Note, together with all
accrued and unpaid interest thereon, shall become due and payable on the
Maturity Date.
The Borrower promises to pay interest on demand, to the extent
permitted by law, on any overdue principal and interest from their due dates at
the rate per annum as specified in Section 2.3(d) of the Term Loan Agreement.
All payments of the principal of and premium and interest on this Term
Note shall be made in money of the United States of America that at the time of
payment is legal tender for the payment of public and private debts, by transfer
of immediately available funds into a bank account designated by the Holder in
writing to the Borrower; provided, however, that notwithstanding anything
contained in the Term Loan Agreement or any of the Term Notes to the contrary,
in no event shall the interest rate hereon for any period of computation exceed
a rate per annum equal to the lesser of 16% and the maximum interest rate
permitted by applicable law.
The Borrower agrees to pay, upon demand, all reasonable out-of-pocket
expenses (including, without limitation, the reasonable fees and disbursements
of legal counsel to the Holder) associated with the waiver, enforcement or
modification of the Term Loan Agreement or this Term Note.
The Borrower hereby waives diligence, presentment, demand, protest and
notice of any kind whatsoever. The nonexercise by the Holder of any of its
rights hereunder in any particular instance shall not constitute a waiver
thereof in that or any subsequent instance.
This Term Note is one of the Term Notes referred to in the Term Loan
Agreement, which Agreement, among other things, contains provisions for the
acceleration of the maturity hereof upon the happening of certain events, for
optional and mandatory prepayment in full of the principal hereof prior to
maturity and for the amendment or waiver of certain provisions of the Term Loan
Agreement, all upon the terms and conditions therein specified. In the event of
any conflict between the provisions of this Term Note and the Term Loan
Agreement, the provisions of the Term Loan Agreement shall govern.
THIS SECURITY WAS ISSUED WITH ORIGINAL ISSUE DISCOUNT UNDER SECTION 1273 OF THE
INTERNAL REVENUE CODE. YOU MAY CONTACT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, VICE PRESIDENT,
CORPORATE CONTROLLER AND CHIEF ACCOUNTING OFFICER OF CROWN CASTLE INTERNATIONAL
CORP., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, TELEPHONE NUMBER:
(▇▇▇) ▇▇▇-▇▇▇▇, FACSIMILE NUMBER: (▇▇▇) ▇▇▇-▇▇▇▇ WHO WILL
PROVIDE YOU WITH ANY REQUIRED INFORMATION REGARDING THE ORIGINAL ISSUE DISCOUNT.
THIS TERM NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the Borrower has caused this Term Note to be
signed in its corporate name by its duly authorized officer and to be dated as
of the day and year first above written.
CROWN CASTLE INTERNATIONAL CORP.
By: ________________________________
Name:
Title:
2
[Back of Term Note]
OPTION OF HOLDER TO ELECT PREPAYMENT UPON CHANGE OF CONTROL
If you want to elect to have this Term Note prepaid by the Borrower
pursuant to Section 4.15 of the Term Loan Agreement check the box below.
[ ] Please prepay the entire amount of this Term Note
If you want to elect to have only part of this Term Note prepaid by
the Borrower pursuant to Section 4.15 of the Term Loan Agreement, state the
amount you elect to have purchased: $_____________.
Date: ________________________
Your Signature:
_________________________________________________
(Sign exactly as your name appears on the face of this
Note)
Tax Identification No. _______________________
Signature Guarantee:
____________________________
Exhibit F-1
FORM OF OPINION OF CRAVATH, SWAINE & ▇▇▇▇▇
1. Based solely on certificates from the Secretary of State of the State of
Delaware, each of the Borrower, CCI, CC Investment, CC Investment II and CCAIC
is a corporation validly existing and in good standing under the laws of the
State of Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its businesses in which it is now engaged and
as are expressly contemplated by the Loan Documents and the Acquisition
Agreements.
2. Based solely on certificates from the Secretary of State of the applicable
jurisdiction, each of the Borrower, CCI, CC Investment, CC Investment II and
CCAIC is duly registered and qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction listed in the officer's
certificate of the Borrower attached as Schedule A hereto.
3. The Borrower has all requisite power and authority to enter into each of
the Loan Documents and the Acquisition Agreements to which it is a party and to
perform its obligations thereunder.
4. Each of the Loan Documents to which the Borrower is a party has been duly
authorized, executed and delivered by the Borrower, and constitutes a legal,
valid and binding obligation, agreement or instrument, as the case may be, of
the Borrower, enforceable against the Borrower in accordance with its respective
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether considered in a proceeding in equity or at law).
5. The Term Loan Agreement has been duly authorized, executed and delivered by
the Borrower, and constitutes a legal, valid and binding agreement of the
Borrower, enforceable against the Borrower in accordance with its terms (subject
to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
6. The Term Notes have been duly authorized, executed and delivered by the
Borrower, and constitute legal, valid and binding obligations of the Borrower
entitled to the benefits of the Term Loan Agreement and enforceable against the
Borrower in accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law).
7. The Registration Rights Agreement has been duly authorized, executed and
delivered by the Borrower and, assuming due authorization, execution and
delivery by the other parties thereto, constitutes a legal, valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law).
8. The Escrow Agreement has been duly authorized, executed and delivered by
the Borrower and, assuming due authorization, execution and delivery by the
other parties thereto, constitutes a legal, valid and binding agreement of the
Borrower, enforceable against the Borrower in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law).
9. The Exchange Note Indenture has been duly authorized, executed and
delivered by the Borrower and, assuming due authorization, execution and
delivery by the Exchange Note Trustee, constitutes a legal, valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law).
10. The Exchange Notes have been duly authorized, executed and delivered by the
Borrower and, assuming due authentication in accordance with the terms of the
Exchange Indenture by the Exchange Trustee, upon delivery to the holders of Term
Loans in exchange for Term Notes, will have been validly issued and delivered
and will constitute legal, valid and binding obligations of the Borrower
entitled to the benefits of the Exchange Indenture and enforceable against the
Borrower in accordance with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law).
11. No registration of the Term Loans, the Term Notes or the Exchange Notes
under the Securities Act of 1933, as amended, is required for the funding of the
Term Loans and the issuance of the Term Notes and the Exchange Notes, in each
case, in the manner contemplated by the Term Loan Agreement and the Escrow
Agreement, as applicable. We express no opinion, however, as to when or under
what circumstances the Term Loans, the Term Notes or the Exchange Notes
subsequently may be resold. No qualification of the Exchange Note Indenture
under the Trust Indenture Act of 1939, as amended, is required prior to the
effectiveness of the Shelf Registration Statement (as such term is defined in
the Registration Rights Agreement).
12. Each of the Acquisition Agreements has been duly authorized by the Board of
Directors of each of the parties thereto (and by any required shareholder
action), has been duly executed and delivered by the other parties thereto, and
constitutes a legal, valid and binding obligation, agreement or instrument, as
the case may be, of the parties thereto, enforceable against the parties
thereto in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in a proceeding in
equity or at law). [Prior to the closing of any Acquisition, this opinion may
be rendered with respect to the Borrower only. To the extent that any
Acquisition has closed and the Borrower has received an opinion of counsel from
the other parties thereto, Borrower's counsel shall render this opinion
including the opinion with respect to such other parities based upon such other
opinion of counsel.]
13. No authorization, approval or other action by, and no notice to, consent
of, order of, or filing with, any United States Federal, new York or, to the
extent required under the General Corporation Law of the State of Delaware,
Delaware governmental authority or regulatory body is required for the
consummation of the transactions contemplated by the Loan Documents, except such
as have been obtained or made on or prior to the date hereof, such as may be
required in connection with
2
the registration under the Act of the Exchange Notes in accordance with the
Registration Rights Agreement and such as to which the failure to be obtained or
made would not, individually or in the aggregate, have a Material Adverse
Effect.
14. Neither the execution or delivery of, nor performance by the Borrower of
its obligations under, the Transaction Documents (as defined in the Term Loan
Agreement) (i) will conflict with, result in a breach of, or constitute a
default under the Restated Certificate of Incorporation or By-laws of the
Borrower, (ii) will conflict with, result in a breach of, or constitute a
default under the terms of any agreement or instrument listed on the officer's
certificate of the Company attached as Schedule A hereto (the "Material
Agreements"), or (iii) will contravene any law, rule or regulation of the United
States or the State of New York or the General Corporation Law of the State of
Delaware, or, to our knowledge, any order or decree of any court or government
agency or instrumentality or will result in the creation or imposition of any
Lien upon any property or assets of the Borrower, CCI, CC Investments, CC
Investments II or CCAIC pursuant to the terms of any Material Agreement, except
in the case of clauses (ii) and (iii), such breaches, conflicts or defaults
that, individually or in the aggregate, would not have a Material Adverse
Effect. In connection with the foregoing, we point out that certain of the
Material Agreements are or may be governed by laws other than the laws of the
State of New York. For purposes of the opinion expressed in this paragraph,
however, we have assumed that all such agreements are governed by and would be
interpreted in accordance with the laws of the State of New York.
15. The Borrower is not and, upon the issuance of the Term Notes and the
Exchange Notes and the application of the net proceeds to the Borrower of such
issuance, will not be an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
The foregoing opinions are qualified as follows:
(i) We express no opinion with respect to the enforcement of any
provision of any agreement providing for indemnification or contribution to
the extent contrary to or inconsistent with public policy.
(ii) With respect to our opinion in paragraphs (13) and (14), in
determining whether any of the matters referred to would have a Material
Adverse Effect, we have relied on statements from officers and directors of
the Borrower as to the anticipated consequences of those matters and have
not independently attempted to verify such consequences.
We are admitted to the practice of law in the State of New York, and
we express no opinion as to any matters governed by any law other than the law
of the State of New York, the General Corporation Law of the State of Delaware
and the Federal law of the United States of America.
3
Exhibit F-2
FORM OF OPINION OF ▇▇▇▇▇▇ ▇▇▇▇
1. CTI was duly incorporated on 9 May 1996 under the Companies ▇▇▇ ▇▇▇▇ as a
private limited company. CTSH was duly incorporated on 27 August 1996 as a
private limited company. A certificate of good standing in respect of each of
the Companies issued by the Companies Registration Office on ________________,
is attached.
2. by a Certificate of Incorporation on Change of Name issued on 21 March 1997
CTI changed its name to Castle Transmission International Ltd. By a Certificate
of Incorporation on Change of Name issue don 25 February 1997, CTSH changed its
name to Castle Transmission Services (Holdings) Ltd.; and
3. CTI is empowered by its Memorandum of Association to conduct its business
as described in the Offering Memorandum.
Exhibit F-3
FORM OF OPINION OF GENERAL COUNSEL
1. Except as set forth on Schedule 3.13 to the Term Loan Agreement, to my
actual knowledge, there are no legal or governmental proceedings pending or
threatened against the Borrower or any of its subsidiaries, or to which any of
their respective properties is subject, that are reasonably likely to have a
Material Adverse Effect or to materially affect the consummation of the
transactions contemplated in the Transaction Documents
2. To my actual knowledge, neither the Borrower nor any Subsidiary (i) is in
default (which default has not been waived) under any agreement, document or
instrument to which it is a party or by which it or any of its assets is bound
or (ii) is in violation of any law, rule, regulation, judgment, writ,
determination, order, decree or arbitral award to which the Borrower or any
Subsidiary is a party or by which the Borrower or any Subsidiary or any of their
respective properties is bound, which default or violation, as the case may be,
would constitute a Default or Event of Default under the Term Loan Agreement or
otherwise could reasonably be likely to have a Material Adverse Effect.
Schedule 3.10(a)
Consolidated Balance Sheet and
Consolidated Statements of Income and Cash Flows
of the Borrower
[Attached]
Schedule 3.10(b)
Statement of Net Assets and Statements of Revenues and Direct Expenses
of the ▇▇▇▇ Atlantic Mobile Tower Operations
[Attached]
Schedule 3.10(c)
Consolidated Balance Sheet and Statement of Revenues and Direct Expenses
of the operations acquired pursuant to the Powertel Acquisition
[Attached]
Schedule 3.10(d)
Unaudited Statement of Income of the assets
acquired pursuant to the ▇▇▇▇ South Letter Agreement
[Attached]
Schedule 3.10(e)
Pro Forma Consolidated Balance Sheet and
Consolidated Statements of Income and Cash Flows
of the Borrower
[Attached]
Schedule 3.13
Absence of Proceedings
Such proceedings as may be required:
1. pursuant to the HSR Act;
2. in connection with the formation and qualification of the BAM Joint
Venture and its subsidiary joint ventures;
3. in connection with the qualification of CCP Inc. in various
jurisdictions in order to consummate the Powertel Acquisition; and
4. in connection with the formation and qualification of subsidiaries
to consummate the ▇▇▇▇ South Acquisition.