Exhibit 99.1
EXECUTION COPY
SECOND AMENDED AND RESTATED LOAN AGREEMENT
AMONG
AMERICAN TOWER, L.P.,
AMERICAN TOWERS, INC.,
TOWERSITES MONITORING, INC.,
AMERICAN TOWER INTERNATIONAL, INC.
AND
AMERICAN TOWER LLC,
AS BORROWERS;
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR
AS LENDERS ON THE SIGNATURE PAGES HEREOF;
THE TORONTO DOMINION BANK, NEW YORK BRANCH,
AS ISSUING BANK,
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
FOR THE LENDERS;
WITH
TD SECURITIES (USA) INC. AND CHASE SECURITIES INC.,
AS CO-LEAD ARRANGERS AND CO-BOOK MANAGERS;
THE BANK OF NEW YORK AND CHASE SECURITIES INC.,
AS CO-SYNDICATION AGENTS;
AND
CREDIT SUISSE FIRST BOSTON
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-DOCUMENTATION AGENTS
Dated February 21, 2003
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Atlanta, Georgia
TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS................................................................2
Section 1.1 Definitions............................................................2
Section 1.2 Interpretation........................................................28
Section 1.3 Cross References..................................................... 29
Section 1.4 Accounting Provisions.................................................29
ARTICLE 2 LOANS.....................................................................29
Section 2.1 The Loans.............................................................29
Section 2.2 Manner of Borrowing and Disbursement..................................30
Section 2.3 Interest..............................................................33
Section 2.4 Commitment Fees.......................................................35
Section 2.5 Mandatory Commitment Reductions.......................................36
Section 2.6 Voluntary Commitment Reductions.......................................37
Section 2.7 Prepayments and Repayments............................................38
Section 2.8 Notes; Loan Accounts..................................................41
Section 2.9 Manner of Payment.....................................................42
Section 2.10 Reimbursement.........................................................43
Section 2.11 Pro Rata Treatment....................................................43
Section 2.12 Capital Adequacy......................................................44
Section 2.13 Bank Tax Forms........................................................45
Section 2.14 Letters of Credit.....................................................45
ARTICLE 3 CONDITIONS PRECEDENT......................................................50
Section 3.1 Conditions Precedent to Effectiveness of this Agreement...............50
Section 3.2 Conditions Precedent to Each Advance..................................52
Section 3.3 Conditions Precedent to Issuance of Letters of Credit.................53
ARTICLE 4 REPRESENTATIONS AND WARRANTIES............................................53
Section 4.1 Representations and Warranties........................................53
Section 4.2 Survival of Representations and Warranties, Etc.......................60
ARTICLE 5 GENERAL COVENANTS.........................................................60
Section 5.1 Preservation of Existence and Similar Matters.........................61
Section 5.2 Business; Compliance with Applicable Law..............................61
Section 5.3 Maintenance of Properties.............................................61
Section 5.4 Accounting Methods and Financial Records..............................61
Section 5.5 Insurance.............................................................61
Section 5.6 Payment of Taxes and Claims...........................................62
Section 5.7 Compliance with ERISA.................................................62
Section 5.8 Visits and Inspections................................................64
Section 5.9 Payment of Indebtedness; Loans........................................64
Section 5.10 Use of Proceeds.......................................................64
Section 5.11 Indemnity.............................................................65
Section 5.12 Interest Rate Hedging.................................................65
Section 5.13 Covenants Regarding Formation of Restricted Subsidiaries and
Acquisitions; Partnership, Subsidiaries...............................66
Section 5.14 Payment of Wages......................................................67
Section 5.15 Further Assurances....................................................67
Section 5.16 Proceeds Account......................................................67
Section 5.17 Upstream Dividends by Unrestricted Subsidiaries.......................68
ARTICLE 6 INFORMATION COVENANTS.....................................................68
Section 6.1 Quarterly Financial Statements and Information........................68
Section 6.2 Annual Financial Statements and Information...........................68
Section 6.3 Performance Certificates..............................................69
Section 6.4 Copies of Other Reports...............................................69
Section 6.5 Notice of Litigation and Other Matters................................70
ARTICLE 7 NEGATIVE COVENANTS........................................................71
Section 7.1 Indebtedness of the Borrowers and the Restricted Subsidiaries.........71
Section 7.2 Limitation on Liens...................................................72
Section 7.3 Amendment and Waiver..................................................72
Section 7.4 Liquidation, Merger or Disposition of Assets..........................73
Section 7.5 Limitation on Guaranties..............................................74
Section 7.6 Investments and Acquisitions..........................................74
Section 7.7 Restricted Payments...................................................75
Section 7.8 Leverage Ratio........................................................76
Section 7.9 Interest Coverage Ratio...............................................77
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service..............77
Section 7.11 Fixed Charge Coverage Ratio...........................................77
Section 7.12 Affiliate Transactions................................................77
Section 7.13 ERISA Liabilities.....................................................78
Section 7.14 Sales and Leasebacks..................................................78
Section 7.15 Senior Leverage Ratio.................................................78
ARTICLE 8 DEFAULT...................................................................79
Section 8.1 Events of Default.....................................................79
Section 8.2 Remedies..............................................................83
Section 8.3 Payments Subsequent to Declaration of Event of Default................85
ARTICLE 9 THE ADMINISTRATIVE AGENT..................................................85
Section 9.1 Appointment and Authorization.........................................85
Section 9.2 Interest Holders......................................................85
Section 9.3 Consultation with Counsel.............................................86
Section 9.4 Documents.............................................................86
Section 9.5 Administrative Agent and Affiliates...................................86
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Section 9.6 Responsibility of the Administrative Agent and Issuing Bank...........86
Section 9.7 Action by the Administrative Agent and Issuing Bank...................86
Section 9.8 Notice of Default or Event of Default.................................87
Section 9.9 Responsibility Disclaimed.............................................87
Section 9.10 Indemnification.......................................................88
Section 9.11 Credit Decision.......................................................88
Section 9.12 Successor Administrative Agent........................................89
Section 9.13 Delegation of Duties..................................................89
Section 9.14 No Responsibilities of the Agents.....................................89
ARTICLE 10 CHANGES IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES AND INCREASED COSTS.....90
Section 10.1 LIBOR Basis Determination Inadequate or Unfair........................90
Section 10.2 Illegality............................................................90
Section 10.3 Increased Costs.......................................................90
Section 10.4 Effect On Other Advances..............................................92
ARTICLE 11 MISCELLANEOUS.............................................................93
Section 11.1 Notices...............................................................93
Section 11.2 Expenses..............................................................94
Section 11.3 Waivers...............................................................95
Section 11.4 Set-Off...............................................................95
Section 11.5 Assignment and Participation..........................................96
Section 11.6 Accounting Principles................................................100
Section 11.7 Counterparts.........................................................100
Section 11.8 Governing Law........................................................100
Section 11.9 Severability.........................................................101
Section 11.10 Interest.............................................................101
Section 11.11 Table of Contents and Headings.......................................101
Section 11.12 Amendment and Waiver.................................................101
Section 11.13 Entire Agreement.....................................................102
Section 11.14 Other Relationships..................................................102
Section 11.15 Directly or Indirectly...............................................102
Section 11.16 Reliance on and Survival of Various Provisions.......................102
Section 11.17 Senior Debt..........................................................102
Section 11.18 Obligations..........................................................103
Section 11.19 Confidentiality......................................................103
Section 11.20 Verestar Entities....................................................103
Section 11.21 Guarantors...........................................................103
ARTICLE 12 WAIVER OF JURY TRIAL.....................................................104
Section 12.1 Waiver of Jury Trial.................................................104
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EXHIBITS
Exhibit A Form of Request for Advance
Exhibit B Form of Request for Issuance of Letter of Credit
Exhibit C Form of Revolving Loan Promissory Note
Exhibit D Form of Subsidiary Guaranty
Exhibit E Form of Subsidiary Pledge Agreement
Exhibit F Form of Subsidiary Security Agreement
Exhibit G Form of Term Loan A Promissory Note
Exhibit H Form of Term Loan B Promissory Note
Exhibit I Form of AT LLC Loan Certificate
Exhibit J Form of Restricted Subsidiary Loan Certificate
Exhibit K Form of Performance Certificate
Exhibit L Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 Licenses
Schedule 2 Restricted Subsidiaries and Unrestricted Subsidiaries on the
Agreement Date
Schedule 3 Exceptions to Representations and Warranties
Schedule 4 Litigation
Schedule 5 Affiliate Transactions
Schedule 6 Indebtedness for Money Borrowed
Schedule 7 Commitment Ratios, Lender Names and Notice Addresses
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
AMONG
AMERICAN TOWER, L.P.,
AMERICAN TOWERS INC.,
TOWERSITES MONITORING, INC.,
AMERICAN TOWER INTERNATIONAL, INC.
AND
AMERICAN TOWER LLC,
AS BORROWERS;
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR
AS LENDERS ON THE SIGNATURE PAGES HEREOF;
THE TORONTO DOMINION BANK, NEW YORK BRANCH,
AS ISSUING BANK;
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT FOR THE LENDERS;
WITH
TD SECURITIES (USA) INC. AND CHASE SECURITIES INC.,
AS CO-LEAD ARRANGERS AND CO-BOOK MANAGERS;
THE BANK OF NEW YORK AND CHASE SECURITIES INC.,
AS CO-SYNDICATION AGENTS;
AND
CREDIT SUISSE FIRST BOSTON AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS CO-DOCUMENTATION AGENTS
WHEREAS, the parties entered into the Prior Loan Agreement (as hereinafter
defined) under which the Term Loan A Loans (as hereinafter defined), the Term
Loan B Loans (as hereinafter defined) and certain Revolving Loans (as
hereinafter defined) have been made; and
WHEREAS, the parties hereto have agreed to amend and restate the Prior Loan
Agreement in its entirety, as more fully set forth in this Agreement; and
WHEREAS, each of the Borrowers acknowledges and agrees that the Security
Interest (as hereinafter defined) granted to the Administrative Agent, for
itself and on behalf of the Lenders, pursuant to certain security documents
executed in connection therewith shall remain outstanding and in full force and
effect and shall continue to secure the Obligations (as hereinafter defined);
and
WHEREAS, each of the Borrowers acknowledges and agrees that: (i) the
Obligations (as hereinafter defined) represent, among other things, the
amendment, restatement, renewal, extension, consolidation and modification of
the Obligations (as defined in the Prior Loan Agreement) arising in connection
with the Prior Loan Agreement and the Security Documents executed in connection
with the Prior Loan Agreement; (ii) the parties hereto intend that the
collateral pledged in connection with the Prior Loan Agreement shall secure,
without interruption or impairment of any kind, all existing Indebtedness under
the Prior Loan Agreement and the Security Documents executed in connection with
the Prior Loan Agreement, as so amended, restated, restructured, renewed,
extended, consolidated and modified hereunder, together with Obligations (as
hereinafter defined), (iii) all Liens evidenced by the security documents
executed in connection with the Prior Loan Agreement are hereby ratified,
confirmed and continued; and (iv) the Loan Documents (as hereinafter defined)
are intended to restructure, restate, renew, extend, consolidate, amend and
modify the Prior Loan Agreement and the Security Documents executed in
connection therewith; and
WHEREAS, each of the parties hereto acknowledges and agrees that Sections
2, 3 and 4 of the Seventh Amendment dated as of October 18, 2002 to the Prior
Loan Agreement relating to Verestar, Inc. and its Subsidiaries remain in full
force and effect notwithstanding the effectiveness of this Agreement, and that
this Agreement does not replace, substitute, modify, amend or restate such
provisions; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1 Definitions
Section 1.1 Definitions. For the purposes of this Agreement:
"2003 Senior Subordinated Discount Notes" shall mean the $419,885,280 (in
aggregate gross proceeds) 12.25% Senior Subordinated Discount Notes due 2008
issued pursuant to the indenture dated as of January 29, 2003 (or any exchange
notes issued in connection therewith) and any refinancing of the foregoing in an
amount not exceeding the accreted value on the date of such refinancing and
otherwise having terms no less favorable in any material respect to the Lenders
than the 2003 Senior Subordinated Discount Notes.
"Acquisition" shall mean (whether by purchase, lease, exchange, issuance of
stock or other equity or debt securities, merger, reorganization or any other
method) (i) any acquisition of any other Person by any Borrower or any of the
Restricted Subsidiaries, which Person shall then become consolidated with any
Borrower or any of the Restricted Subsidiaries in accordance with GAAP; (ii) any
acquisition by any Borrower or any of the Restricted Subsidiaries of all or any
substantial part of the assets of any other Person; (iii) any acquisition by any
Borrower or any of the Restricted Subsidiaries of any business (or related
contracts) primarily involving the management of communications sites, towers or
other facilities for third parties, other than in any such case described in
clauses (i) through (iii) any such Acquisition which shall be made by, or of,
any Person which shall have been designated and, to the extent required hereby,
approved as an Unrestricted Subsidiary or (iv) any acquisition by any Borrower
or any of the Restricted Subsidiaries of any communications towers or
communications tower sites.
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"Acquisition Operating Cash Flow" shall mean in the case of an Acquisition
permitted hereunder, Operating Cash Flow (Towers) and Operating Cash Flow (Other
Business), as applicable, of the Borrowers and their Restricted Subsidiaries for
the period during which such Acquisition occurs, adjusted to give effect to such
Acquisition, as if such Acquisition had occurred on the first day of such
period, by excluding the Operating Cash Flow (Towers) and Operating Cash Flow
(Other Business), as applicable, of such Acquisition during such period prior to
and including the date of such Acquisition and adding to the Operating Cash Flow
(Towers) and Operating Cash Flow (Other Business), as applicable, of the
Borrowers and their Restricted Subsidiaries, if positive, or subtracting from
such Operating Cash Flow (Towers) and Operating Cash Flow (Other Business), as
applicable, if negative, the product of (i) the actual Operating Cash Flow
(Towers) and Operating Cash Flow (Other Business), as applicable, of such
Acquisition for that portion of such period from the date of such Acquisition to
the last day of such period, multiplied by (ii) a fraction the numerator of
which is the number of calendar days in such period and the denominator of which
is the number of days in such period from and including the date following such
Acquisition through the last day of such period.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., in its
capacity as Administrative Agent for the Lenders and the Issuing Bank, or any
successor Administrative Agent appointed pursuant to Section 9.12 hereof.
"Administrative Agent's Office" shall mean the office of the Administrative
Agent located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, or such
other office as may be designated pursuant to the provisions of Section 11.1
hereof.
"Advance" shall mean the aggregate amounts advanced by the Lenders to any
Borrower pursuant to Article 2 hereof on the occasion of any borrowing and
having the same Interest Rate Basis and Interest Period; and "Advances" shall
mean more than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, such
first Person. For purposes of this definition, "control", when used with respect
to any Person, includes, without limitation, the direct or indirect beneficial
ownership of more than ten percent (10%) of the voting securities or voting
equity of such Person or the power to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Agreement" shall mean this Second Amended and Restated Loan Agreement, as
amended, supplemented, restated or otherwise modified from time to time.
"Agreement Date" shall mean February 21, 2003.
"AirTouch" shall mean Vodafone AirTouch Plc, a Delaware corporation.
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"AirTouch Agreement to Sublease" shall mean that certain Agreement to
Sublease dated August 6, 1999, as amended to the extent permitted hereunder, by
and among AirTouch, the Sublessors (as defined therein), the Parent and AT L.P.
"AirTouch Build to Suit Agreement" shall mean that certain Site Development
and Build-to-Suit Agreement by and among AirTouch, AT L.P. and the Parent
entered into pursuant to the AirTouch Agreement to Sublease.
"AirTouch Sublease" shall mean, collectively, any master lease, lease or
sublease entered into pursuant to the AirTouch Agreement to Sublease, in each
case as amended to the extent permitted hereunder.
"Annualized Operating Cash Flow" shall mean, as of any calculation date, in
each case on a consolidated basis, (a) the sum of (i) the product of (A)
Operating Cash Flow (Towers) for the fiscal quarter-end being tested, or the
most recently completed fiscal quarter immediately preceding such calculation
date, as the case may be, times (B) four (4); and (ii) Operating Cash Flow
(Other Business) for the four fiscal quarter period end being tested or the most
recently completed four (4) fiscal quarter period immediately preceding such
calculation date, as the case may be; minus (b) corporate overhead (exclusive of
amortization and depreciation) of the Borrowers and the Restricted Subsidiaries
for the four (4) fiscal quarter period then ended or, the most recently
completed four (4) fiscal quarter period immediately preceding the calculation
date, as the case may be; provided, however, that for purposes of calculating
the Leverage Ratio only, (I) item (a) above shall not include the amount by
which the product of (x) Operating Cash Flow (without deductions for corporate
overhead) attributable to Restricted Subsidiaries located in or doing business
in Brazil and Mexico (or such other countries as the Majority Lenders approve)
times (y) four (4) exceeds ten percent (10%) of the total amount determined by
clause (a) of this definition (before giving effect to the deduction set forth
in clause (II) immediately following), and (II) item (a)(ii) above shall be
reduced by twenty-five percent (25%).
"Applicable Law" shall mean, in respect of any Person, all provisions of
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person, including, without limiting the
foregoing, the Licenses, the Communications Act, zoning ordinances and all
Environmental Laws, and all orders, decisions, judgments and decrees of all
courts and arbitrators in proceedings or actions to which the Person in question
is a party or by which it is bound.
"Applicable Margin" shall mean the interest rate margin applicable to Base
Rate Advances and LIBOR Advances, as the case may be, in each case determined in
accordance with Section 2.3(f) hereof.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
-4-
"Assignment of General Partner Interests" shall mean that certain Amended
and Restated Assignment of General Partner Interests, dated January 6, 2000,
made by ATC GP in favor of the Administrative Agent.
"Assignments of Intercompany Notes" shall mean, collectively, that certain
Assignment of Intercompany Note of ATC Operating and that certain Assignment of
Intercompany Note of ATC Holding, each dated January 6, 2000 in favor of the
Administrative Agent.
"Assignment of Limited Partner Interests" shall mean that certain Amended
and Restated Assignment of Limited Partner Interests, dated January 6, 2000,
made by ATC LP in favor of the Administrative Agent.
"AT LLC" shall mean American Tower LLC, a Delaware limited liability
company and one of the Borrowers.
"AT LLC Assumption Agreement" shall mean that certain Assumption Agreement
dated as of the Agreement Date (which shall be in form and substance reasonably
satisfactory to the Administrative Agent) by and between AT LLC and the
Administrative Agent on behalf of itself, the Lenders and the Issuing Bank
pursuant to which AT LLC shall assume the obligations of ATC Holding under (i)
the ATC Holding Guaranty, (ii) the ATC Holding Security Agreement, (iii) that
certain Pledge Agreement dated January 6, 2000 by and between ATC Holding and
the Administrative Agent, for itself and on behalf of the Lenders and the
Issuing Bank, and (iv) that certain Subordination Agreement by and between ATC
Holding, ATC GP and the Administrative Agent dated January 6, 2000.
"AT L.P." shall mean American Tower, L.P., a Delaware limited partnership
and one of the Borrowers.
"AT Inc." shall mean American Towers, Inc., a Delaware corporation and one
of the Borrowers.
"AT&T" shall mean AT&T Corporation, a New York corporation.
"ATC GP" shall mean ATC GP Inc., a Delaware corporation and a wholly-owned
Subsidiary of AT LLC.
"ATC GP Guaranty" shall mean that certain Amended and Restated Guaranty,
dated January 6, 2000, made by ATC GP in favor of the Administrative Agent, the
Lenders and the Issuing Bank, in form and substance reasonably satisfactory to
the Administrative Agent.
"ATC GP Security Agreement" shall mean that certain Amended and Restated
Security Agreement dated January 6, 2000, between ATC GP and the Administrative
Agent, for itself and on behalf of the Lenders and the Issuing Bank, in form and
substance reasonably satisfactory to the Administrative Agent.
-5-
"ATC Holding" shall mean ATC Holding Inc., a Delaware corporation and a
wholly-owned Subsidiary of the Parent (which has merged with and into AT LLC).
"ATC Holding Guaranty" shall mean that certain Amended and Restated
Guaranty, dated January 6, 2000, made by ATC Holding in favor of the
Administrative Agent, the Lenders and the Issuing Bank, in form and substance
reasonably satisfactory to the Administrative Agent.
"ATC Holding Security Agreement" shall mean that certain Amended and
Restated Security Agreement dated January 6, 2000, between ATC Holding and the
Administrative Agent, for itself and on behalf of the Lenders and the Issuing
Bank, in form and substance reasonably satisfactory to the Administrative Agent.
"ATC International" shall mean American Tower International, Inc., a
Delaware corporation.
"ATC LP" shall mean ATC LP Inc., a Delaware corporation and a wholly-owned
Subsidiary of ATC Operating.
"ATC Mexico" shall mean American Tower Corporation de Mexico, S. de ▇.▇. de
C.V., a Mexico limited liability company, and any entity that is a successor
thereto.
"ATC Operating" shall mean ATC Operating Inc., a Delaware corporation and a
wholly-owned Subsidiary of AT Inc. (which has merged with and into AT Inc.).
"Authorized Signatory" shall mean such senior personnel of a Person as may
be duly authorized and designated in writing by such Person to execute
documents, agreements and instruments on behalf of such Person.
"Available Letter of Credit Commitment" shall mean, at any time, the lesser
of (a) (i) $50,000,000.00 minus (ii) all Letter of Credit Obligations then
outstanding, and (b) the Available Revolving Loan Commitment then in effect.
"Available Revolving Loan Commitment" shall mean, as of any date, the
difference between (i) the Revolving Loan Commitments in effect on such date
minus (ii) the sum of (A) the Revolving Loans then outstanding plus (B) the
Letter of Credit Obligations then outstanding.
"Base Rate" shall mean, at any time, a fluctuating interest rate per annum
equal to the higher of (a) the rate of interest quoted from time to time by the
Administrative Agent as its "prime rate" or "base rate" or (b) the sum of (i)
the Federal Funds Rate plus (ii) one-half of one percent (1/2%). The Base Rate
is not necessarily the lowest rate of interest charged by the Administrative
Agent in connection with extensions of credit.
-6-
"Base Rate Advance" shall mean an Advance which any Borrower requests to be
made as a Base Rate Advance or is Converted to a Base Rate Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $1,000,000.00 and in an integral multiple of
$500,000.00.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of (i)
the Base Rate and (ii) the Applicable Margin applicable to Base Rate Advances
for the applicable Loans. The Base Rate Basis shall be adjusted automatically as
of the opening of business on the effective date of each change in the Base Rate
to account for such change, and shall also be adjusted to reflect changes of the
Applicable Margin applicable to Base Rate Advances.
"Borrower Guaranties" shall mean, collectively, that certain Amended and
Restated Borrower Guaranty (AT Inc.) dated as of January 6, 2000, that certain
Amended and Restated Borrower Guaranty (AT L.P.) dated as of January 6, 2000,
that certain Borrower Guaranty (Towersites Monitoring) dated as of March 26,
2001, that certain Borrower Guaranty (ATC International) dated as of October 26,
2001, that certain Borrower Guaranty (AT LLC) dated as of January 6, 2000 and
any future Borrower Guaranty executed and delivered pursuant to the terms
hereof, each substantially in the form of the foregoing Borrower Guaranties.
"Borrower Security Agreements" shall mean, collectively, those certain
Security Agreements dated as of January 6, 2000, made by each of AT L.P. and AT
Inc. in favor of the Administrative Agent, for itself and on behalf of the
Lenders and the Issuing Bank, that certain Security Agreement dated March 26,
2001 by Towersites Monitoring in favor of the Administrative Agent, for itself
and on behalf the Lenders and the Issuing Bank, that certain Security Agreement
dated October 26, 2001 by ATC International in favor of the Administrative Agent
for itself and on behalf of the Lenders and the Issuing Bank and any other
Borrower Security Agreement executed and delivered by a Borrower pursuant to the
terms hereof, each substantially in the form of the foregoing Borrower Security
Agreements.
"Borrower Stock Pledge Agreements" shall mean, collectively, that certain
Amended and Restated Stock Pledge Agreement of AT Inc. dated January 6, 2000
between AT Inc. and the Administrative Agent, pursuant to which AT Inc. has
pledged to the Administrative Agent, for itself and on behalf of the Lenders and
the Issuing Bank, all of its stock ownership in each of its directly owned
Restricted Subsidiaries, and any other Stock Pledge Agreement executed and
delivered by a Borrower pursuant to the terms hereof, each substantially in the
form of the foregoing Stock Pledge Agreements.
"Borrowers" shall mean, collectively, AT L.P., AT Inc., Towersites
Monitoring, ATC International and AT LLC, and shall include such other Persons
as may be approved by the Majority Lenders at such time as any such Person
executes and delivers to the Administrative Agent an assignment and assumption
agreement in form and substance satisfactory to the Administrative Agent and
also executes and delivers to the Administrative Agent every other relevant Loan
Document as executed by the other Borrowers; and "Borrower" shall mean any one
of the foregoing.
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"Broker/Dealer" shall mean, with respect to any Investment permitted under
Section 7.6(a) hereof, (a) any broker/dealer (acting as principal) registered as
a broker or a dealer under Section 15 of the Exchange Act, the unsecured
short-term debt obligations of which are rated "P-1" by ▇▇▇▇▇'▇ and at least
"A-1" by Standard and Poor's at the time of entering into such Investment or
Acquisition or (b) an unrated broker/dealer, acting as principal, that is a
wholly-owned Subsidiary of a non-bank or bank holding company, the unsecured
short-term debt obligations of which are rated "P-1" by ▇▇▇▇▇'▇ and at least
"A-1" by Standard and Poor's at the time of entering into such Investment or
Acquisition.
"Business Day" shall mean a day on which banks and foreign exchange markets
are open for the transaction of business required for this Agreement in Houston,
Texas, New York, New York and London, England, as relevant to the determination
to be made or the action to be taken.
"Capital Expenditures" shall mean, for any period, expenditures (including,
without limitation, the aggregate amount of Capitalized Lease Obligations
required to be paid during such period) incurred by any Person to acquire or
construct fixed assets, plant and equipment (including, without limitation,
renewals, improvements, replacements, repairs and maintenance) during such
period, that would be required to be capitalized on the balance sheet of such
Person in accordance with GAAP.
"Capital Raise Proceeds" shall mean fifty percent (50%) of the net cash
proceeds of any public or private sale or issuance of debt instruments of the
Parent (other than in connection with any refinancing of Indebtedness that would
not cause a Default under Section 8.1(p) hereof), any of the Borrowers or any of
the Restricted Subsidiaries (other than (A) debt among the Borrowers and the
Restricted Subsidiaries, or any of them, or (B) the Loans, or (C) the proceeds
of any permitted refinancing of the 2003 Senior Subordinated Discount Notes).
"Capital Stock" shall mean, as applied to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any obligation of
a Person as lessee under a lease which at the time would be required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"Change of Control" shall mean (a) the failure of the Parent to own,
directly or indirectly, one hundred percent (100%) of the ownership interests of
each of the Borrowers, (b) the sale, lease or transfer, in one or a series of
related transactions, of all or substantially all of any Borrower's assets to
any Person or group (as such term is used in Section 13(d)(3) of the Exchange
Act) other than to the other Borrowers or any wholly-owned direct or indirect
Restricted Subsidiary of any Borrower, (c) the adoption of a plan relating to
the liquidation or dissolution of the Parent, (d) the acquisition, directly or
indirectly, by any Person or group (as such term is used in Section 13(d)(3) of
the Exchange Act) of forty percent (40%) or more of the
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voting power of the voting stock of the Parent by way of merger or consolidation
or otherwise and such Persons (or group) own more voting power than the
Principal Shareholders, or (e) the Continuing Directors cease for any reason to
constitute a majority of the directors of the Parent then in office.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" shall mean any property of any kind constituting collateral
for the Obligations under any of the Security Documents.
"Commercial Letter of Credit" shall mean a documentary letter of credit
issued in respect of the purchase of goods or services by any Borrower or any
Restricted Subsidiary by the Issuing Bank in accordance with the terms of this
Agreement.
"Commitments" shall mean, collectively, the Revolving Loan Commitments, the
Term Loan A Commitments, and the Term Loan B Commitments.
"Commitment Ratio" shall mean (a) with respect to Revolving Loan
Commitments, the percentage in which a Lender is severally bound to fund its
portion of Advances to the Borrowers under the Revolving Loan Commitments, (b)
with respect to Term Loan A Commitments, the percentage in which a Lender holds
a portion of the Term Loan A Commitments, and (c) with respect to the Term Loan
B Commitments, the percentage in which a Lender holds a portion of the Term Loan
B Commitment, in each case as set forth on Schedule 7 attached hereto (together
with dollar amounts) (and which may change from time to time in accordance with
Section 11.5 hereof).
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Continue", "Continuation" and "Continued" shall mean the continuation
pursuant to Article 2 hereof of a LIBOR Advance as a LIBOR Advance from one
Interest Period to a different Interest Period.
"Continuing Director" shall mean any member of the Board of Directors of
the Parent who (i) is a member of that Board of Directors on the Agreement Date
or (ii) was nominated for election by either (a) one or more of the Principal
Shareholders (or a Related Party thereof) or (b) the Board of Directors a
majority of whom were directors on the Agreement Date or whose election or
nomination for election was previously approved by one or more of the Principal
Shareholders or directors who were directors at the Agreement Date or whose
election or nomination for election was previously approved by directors
approved pursuant to this definition.
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"Convert", "Conversion" and "Converted" shall mean a conversion pursuant to
Article 2 hereof of a LIBOR Advance into a Base Rate Advance or of a Base Rate
Advance into a LIBOR Advance, as applicable.
"Convertible Notes" shall mean, collectively, (a) the $300,000,000.00 6.25%
Convertible Notes Due 2009 issued pursuant to that certain Indenture dated
October 4, 1999 of the Parent, with The Bank of New York as Trustee, (b) the
$425,500,000.00 2.25% Convertible Notes Due 2009 issued pursuant to that certain
Indenture dated October 4, 1999 of the Parent, with The Bank of New York as
Trustee and (c) the $450,000,000.00 5.00% Convertible Notes Due 2010 issued
pursuant to that certain Indenture dated February 15, 2000 of the Parent, with
The Bank of New York as Trustee.
"Default" shall mean any Event of Default, and any of the events specified
in Section 8.1 hereof, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the sum
of (a) the then applicable Interest Rate Basis (including the Applicable
Margin), and (b) two percent (2.0%).
"Employee Pension Plan" shall mean any Plan that (a) is an employee pension
benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer
Plan) and (b) is subject to the provisions of Title IV of ERISA or to the
minimum funding standards under Section 412 of the Code which is maintained by
any Borrower, any of their Subsidiaries or any ERISA Affiliate.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to public health, safety or the
pollution or protection of the environment, including, without limitation, those
relating to releases, discharges, emissions, spills, leaching, or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any fraction
thereof, or other hydrocarbons), pollutants or contaminants, to exposure to
toxic, hazardous or other controlled, prohibited, or regulated substances,
including, without limitation, any such provisions under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. (S) 9601 et seq.), or the Resource Conservation and Recovery Act of 1976,
as amended (42 U.S.C. (S) 6901 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of any Borrower, that is a member of any group of organizations of
which any Borrower, as the case
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may be, is a member and is treated as a single employer with such Borrower under
Section 414 of the Code. Notwithstanding the foregoing, no Verestar Entity shall
be deemed to be an "ERISA Affiliate" or part of the "ERISA Affiliates"
respectively.
"Escrow Corp." shall mean American Tower Escrow Corporation, a Delaware
corporation.
"Escrow Corp. Merger" shall mean the merger on or before March 31, 2003 of
Escrow Corp. with and into AT Inc.
"Eurodollar Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D), whether or not any Lender
has any such Eurocurrency Liabilities subject to such reserve requirement at
that time.
"Event of Default" shall mean any of the events specified in Section 8.1
hereof; provided, however, that any requirement stated therein for notice or
lapse of time, or both, has been satisfied.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Excess Cash Flow" shall mean, as of the end of any fiscal year of the
Borrowers based on the audited financial statements provided under Section 6.2
hereof for such fiscal year if available, the excess, if any, without
duplication, of (a) Operating Cash Flow for such fiscal year (exclusive of
amounts received in connection with loans to TV Azteca), minus (b) the sum of
the following: (i) Capital Expenditures made (other than from the proceeds of
the issuance of Capital Stock of the Borrowers, the proceeds of the incurrence
of Indebtedness or from the reinvestment of the Net Proceeds of any sale,
transfer or other disposition of assets of any Borrower or any Restricted
Subsidiary or any insurance or condemnation proceeding with respect to such
assets, to the extent permitted hereunder), by the Borrowers and the Restricted
Subsidiaries during such fiscal year; (ii) Scheduled Revolving Loan Payments
during such fiscal year; (iii) taxes paid in cash by the Borrowers and their
Restricted Subsidiaries during such fiscal year; (iv) Interest Expense during
such fiscal year; (v) scheduled principal payments made in respect of
Indebtedness for Money Borrowed (other than with respect to the Revolving Loans
and loans by any Borrower or any Restricted Subsidiary to any Borrower or any of
the Restricted Subsidiaries) paid by the Borrowers and the Restricted
Subsidiaries during such fiscal year; and (vi) Restricted Payments made to the
Parent (other than from Excess Cash Flow and other than pursuant to Sections
7.7(c) and (d) hereof) during such fiscal year.
"Facility Usage" shall mean, as of the end of each calendar quarter, the
percentage equivalent of a fraction, the numerator of which is equal to the sum
of the average daily amount during such quarter of (i) the Revolving Loans
outstanding and (ii) the Letters of Credit
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outstanding, and the denominator of which is equal to the average daily amount
of the Revolving Loan Commitment (as reduced hereunder from time to time and
prior to the Agreement Date under the Prior Loan Agreement) during such quarter.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted average of
the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"Fixed Charges" shall mean, as of any calculation date, for the twelve (12)
calendar month period immediately preceding such date, for the Borrowers and the
Restricted Subsidiaries on a consolidated basis, the sum of (a) Interest Expense
for such period, (b) commitment and other fees incurred in connection with this
Agreement during such period, (c) all scheduled principal repayments with
respect to any Indebtedness for Money Borrowed (other than the Revolving Loans)
during such period, (d) all Scheduled Revolving Loan Payments made during such
period to the extent not included in Interest Expense, (e) taxes paid in cash
during such period, (f) Capital Expenditures made by the Borrowers and the
Restricted Subsidiaries (other than from the reinvestment of the Net Proceeds of
any asset sale and insurance or condemnation proceeding, to the extent permitted
hereunder) during such period and (g) Restricted Payments made to the Parent
(other than from Excess Cash Flow and other than pursuant to Sections 7.7(c) and
(d) hereof) during such period.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
"Granting Lender" shall have the meaning ascribed thereto in Section
11.5(j) hereof.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit or capital call requirements; provided, however,
that the term "Guaranty" shall not include guarantees entered into in the
ordinary course of business not involving Indebtedness for Money Borrowed.
"ICG Holdings" shall mean ICG Holdings, Inc., a Colorado corporation.
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"Indebtedness" shall mean, with respect to any Person, and without
duplication, (a) all items, except items of shareholders' and partners' equity
or capital stock or surplus or general contingency or deferred tax reserves,
which in accordance with GAAP would be included in determining total liabilities
as shown on the liability side of a balance sheet of such Person, including,
without limitation, with respect to any secured non-recourse obligations of such
Person, the higher of the book value or fair market value of the property or
asset securing such obligation (if less than the amount of such obligation), (b)
all direct or indirect obligations of any other Person secured by any Lien to
which any property or asset owned by such Person is subject, but only to the
extent of the higher of the fair market value or the book value of the property
or asset subject to such Lien (if less than the amount of such obligation), if
the obligation secured thereby shall not have been assumed, (c) to the extent
not otherwise included, all Capitalized Lease Obligations of such Person and the
principal portion of all obligations of such Person with respect to leases
constituting part of a sale and lease-back arrangement, (d) all reimbursement
obligations with respect to outstanding letters of credit, (e) to the extent not
otherwise included, all obligations subject to Guaranties of such Person or its
Subsidiaries, and (f) all obligations of such Person under Interest Hedge
Agreements valued on a marked to market basis on the date of determination;
provided, however, that the Intracoastal Notes shall not be deemed to be, and
shall be excluded from, Indebtedness.
"Indebtedness for Money Borrowed" shall mean, with respect to any Person,
Indebtedness for money borrowed and Indebtedness represented by notes payable
and drafts accepted representing extensions of credit, all obligations evidenced
by bonds, debentures, notes or other similar instruments, all Indebtedness upon
which interest charges are customarily paid (other than trade payables arising
in the ordinary course of business, but only if and so long as such accounts are
payable on customary trade terms), all Capitalized Lease Obligations, all
reimbursement obligations with respect to outstanding letters of credit, all
Indebtedness issued or assumed as full or partial payment for property or
services (other than trade payables arising in the ordinary course of business,
but only if and so long as such accounts are payable on customary trade terms),
whether or not any such notes, drafts, obligations or Indebtedness represent
Indebtedness for money borrowed, and, without duplication, Guaranties of any of
the foregoing; provided, however, that the Intracoastal Notes shall not be
deemed to be, and shall be excluded from, Indebtedness for Money Borrowed. For
purposes of this definition, interest which is accrued but not paid on the
scheduled due date for such interest shall be deemed Indebtedness for Money
Borrowed.
"Indemnitee" shall have the meaning ascribed thereto in Section 5.11
hereof.
"Interest Expense" shall mean, for any period, all cash interest expense
(including imputed interest with respect to Capitalized Lease Obligations and
fees) with respect to any Indebtedness for Money Borrowed (including, without
limitation, the Obligations) of the Borrowers and the Restricted Subsidiaries on
a consolidated basis during such period pursuant to the terms of such
Indebtedness for Money Borrowed, all as calculated in accordance with GAAP.
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"Interest Hedge Agreements" shall mean the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Interest Period" shall mean (a) in connection with any Base Rate Advance,
the period beginning on the date such Advance is made as or Converted to a Base
Rate Advance and ending on the last day of the calendar quarter in which such
Advance is made as or Converted to a Base Rate Advance; provided, however, that
if a Base Rate Advance is made or Converted on the last day of any calendar
quarter, it shall have an Interest Period ending on, and its Payment Date shall
be, the last day of the following calendar quarter, and (b) in connection with
any LIBOR Advance, the term of such Advance selected by the Borrowers or
otherwise determined in accordance with this Agreement. Notwithstanding the
foregoing, however, (i) any applicable Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the next succeeding
Business Day unless, with respect to LIBOR Advances only, such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day, (ii) any applicable Interest Period, with
respect to LIBOR Advances only, which begins on a day for which there is no
numerically corresponding day in the calendar month during which such Interest
Period is to end shall (subject to clause (i) above) end on the last day of such
calendar month, and (iii) the Borrowers shall not select an Interest Period
which extends beyond the Maturity Date or such earlier date as would interfere
with the Borrowers' repayment obligations under Section 2.5, 2.6 or 2.7 hereof.
Interest shall be due and payable with respect to any Advance as provided in
Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR Basis, as
appropriate.
"Intracoastal Notes" shall mean, collectively, the partially non-recourse
notes of AT L.P. (true and correct copies of which have been delivered to the
Administrative Agent), in the aggregate principal amount of $12,000,000.00,
issued by AT L.P. in connection with the merger of Intracoastal Broadcasting,
Inc., a Delaware corporation, into AT Inc.
"Investment" shall mean any investment or loan by any Borrower or any
Restricted Subsidiary in or to any Person which Person, (a) after giving effect
to such investment or loan, is not consolidated with the Borrowers and the
Restricted Subsidiaries in accordance with GAAP, or (b) is designated as an
Unrestricted Subsidiary in accordance with the terms hereof.
"Issuing Bank" shall mean The Toronto-Dominion Bank, New York Branch, as
issuer of the Letters of Credit, and its successors and assigns hereunder.
"Known to the Borrower", "to the Knowledge of the Borrower" or any similar
phrase, shall mean known by or reasonably should have been known by the
executive officers of any
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Borrower (which shall include, without limitation, the chief executive officer,
the chief operating officer, if any, the chief financial officer, the general
counsel and any vice president of any Borrower or of ATC GP).
"Lenders" shall mean the Persons whose names appear as "Lenders" on the
signature pages hereof and any other Person which becomes a "Lender" hereunder
after the Agreement Date; and "Lender" shall mean any one of the foregoing
Lenders.
"Letter of Credit Obligations" shall mean, at any time, the sum of (a) an
amount equal to the aggregate undrawn and unexpired amount (including the amount
to which any such Letter of Credit can be reinstated pursuant to the terms
hereof) of the then outstanding Letters of Credit and (b) an amount equal to the
aggregate drawn, but unreimbursed, drawings on any Letters of Credit.
"Letter of Credit Reserve Account" shall mean any account maintained by the
Administrative Agent for the benefit of the Issuing Bank, the proceeds of which
shall be applied as provided in Section 8.2(g) hereof.
"Letters of Credit" shall mean, collectively, each Standby Letter of Credit
or Commercial Letter of Credit issued by the Issuing Bank on behalf of any
Borrower or any Restricted Subsidiaries in accordance with the terms hereof.
"Leverage Ratio" shall mean, as of any calculation date, the ratio of (a)
Total Debt on such date to (b) Annualized Operating Cash Flow as of such date.
"LIBOR" shall mean, for any Interest Period, the average of the interest
rates per annum at which deposits in United States Dollars for such Interest
Period are offered to the Administrative Agent in the Eurodollar market at
approximately 11:00 a.m. (London, England time) two (2) Business Days before the
first day of such Interest Period, in an amount approximately equal to the
principal amount of, and for a length of time approximately equal to the
Interest Period for, the LIBOR Advance sought by any Borrower.
"LIBOR Advance" shall mean an Advance which the Borrowers request to be
made as, Converted to or Continued as a LIBOR Advance in accordance with the
provisions of Section 2.2 hereof, and which shall be in a principal amount of at
least $5,000,000.00 and in an integral multiple of $1,000,000.00.
"LIBOR Basis" shall mean a simple per annum interest rate (rounded upward,
if necessary, to the nearest one-hundredth (1/100th) of one percent (1%)) equal
to the sum of (a) the quotient of (i) LIBOR divided by (ii) one (1) minus the
Eurodollar Reserve Percentage, if any, stated as a decimal, plus (b) the
Applicable Margin. The LIBOR Basis shall apply to Interest Periods of one (1),
two (2), three (3), or six (6) months, and, once determined, shall remain
unchanged during the applicable Interest Period, except for changes to reflect
adjustments in the Eurodollar Reserve Percentage and the Applicable Margin as
adjusted
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pursuant to Section 2.3(f) hereof. The LIBOR Basis for any LIBOR Advance shall
be adjusted as of the effective date of any change in the Eurodollar Reserve
Percentage.
"Licenses" shall mean, collectively, any telephone, microwave, radio
transmissions, personal communications or other license, authorization,
certificate of compliance, franchise, approval or permit, whether for the
construction, the ownership or the operation of any communications tower
facilities, granted or issued by the FCC and held by any Borrower or any of the
Restricted Subsidiaries, all of which as of the Agreement Date are listed on
Schedule 1 attached hereto.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not ▇▇▇▇▇▇, vested or perfected.
"Loan Documents" shall mean, collectively, this Agreement, the Notes, the
Security Documents, all fee letters, all Requests for Advance, all Requests for
Issuance of Letters of Credit, all Letters of Credit, all Interest Hedge
Agreements between any Borrower, on the one hand, and the Administrative Agent
and any Person that is a Lender (or any of their Affiliates) on the date such
Interest Hedge Agreement was entered into, or any of them, on the other hand,
and all other certificates, documents, instruments and agreements executed or
delivered by any Borrower, any of the Restricted Subsidiaries, the Parent, ATC
Holding, ATC GP or any Verestar Entity in connection with or contemplated by
this Agreement or any other Loan Document.
"Loans" shall mean, collectively, the Revolving Loans, the Term Loan A
Loans and the Term Loan B Loans.
"Loan-Purchase Agreement" shall mean any agreement or related agreements
between any Borrower or any Restricted Subsidiary and any other Person pursuant
to the terms of which (a) any Borrower or such Restricted Subsidiary has made a
loan to such Person permitted by Section 7.6(b) hereof and (b) any Borrower or
such Restricted Subsidiary shall agree (whether by merger, acquisition of assets
or acquisition of capital stock) to acquire all or substantially all of the
assets of such Person within the twelve (12) calendar month period immediately
following the date of such agreement.
"Majority Lenders" shall mean, collectively, Lenders the total of whose
Commitment Ratios equals or exceeds fifty-one percent (51%) of the Commitment
Ratios of all Lenders entitled to vote hereunder (without giving effect to any
Loans then outstanding).
"Materially Adverse Effect" shall mean (a) any material adverse effect upon
the business, assets, business prospects, liabilities, financial condition,
results of operations or properties of the Borrowers and the Restricted
Subsidiaries, taken as a whole, or (b) a material adverse effect upon the
binding nature, validity, or enforceability of this Agreement and the Notes, or
upon the
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ability of the Borrowers and the Restricted Subsidiaries to perform the payment
obligations or other material obligations under this Agreement or any other Loan
Document, or upon the value of the Collateral or upon the rights, benefits or
interests of the Lenders in and to the Loans or the rights of the Administrative
Agent and the Lenders in the Collateral; in either case, whether resulting from
any single act, omission, situation, status, event or undertaking, or taken
together with other such acts, omissions, situations, statuses, events or
undertakings.
"Maturity Date" shall mean the Revolving Loan Maturity Date, the Term Loan
A Maturity Date, and the Term Loan B Maturity Date.
"▇▇▇▇▇'▇" shall mean ▇▇▇▇▇'▇ Investor's Service, Inc. and its successors.
"Multiemployer Plan" shall mean a multiemployer pension plan as defined in
Section 3(37) of ERISA to which any Borrower, any of its Subsidiaries or any
ERISA Affiliate is or has been required to contribute.
"Necessary Authorizations" shall mean all approvals and licenses from, and
all filings and registrations with, any governmental or other regulatory
authority, including, without limiting the foregoing, the Licenses and all
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrowers and the Restricted Subsidiaries to
own, construct, maintain, and operate communications tower facilities and to
invest in other Persons who own, construct, maintain, manage and operate
communications tower facilities.
"Net Investment Amount" shall mean an amount equal to the excess of (a) the
aggregate amount (valued, for these purposes, at their original cost) of all
such Investments (which, for these purposes shall not include the distribution
by AT Inc. of its Investment in ATC Mexico to ATC International) made pursuant
to the provisions of Section 7.6(b) hereof from and after March 31, 2001, over
(b) the sum of (i) the net cash proceeds received upon sale, transfer or other
disposition of any such Investments, or any Investments derived therefrom (after
deducting costs and expenses of sale, transfer or other disposition), and (ii)
the aggregate amount of such Investments made pursuant to Section 7.6(b)(ii)
hereof in Persons whose acquisition, merger or lease/sublease agreement with the
Parent, any Borrower or any of the Restricted Subsidiaries shall have been
consummated (so long as the assets acquired or leased are owned or leased by any
Borrower or any of the Restricted Subsidiaries).
"Net Proceeds" shall mean, with respect to any sale, lease, transfer or
other disposition of assets by, or any insurance or condemnation proceedings
with respect to the assets of, any Borrower or any of the Restricted
Subsidiaries, the aggregate amount of cash received (including, without
limitation, any payments received for noncompetition covenants, consulting or
management fees in connection with such sale, and any portion of the amount
received evidenced by a promissory note or other evidence of Indebtedness issued
by the purchaser), net of (i) amounts reserved, if any, for taxes payable with
respect to any such transaction or proceeding (after application (assuming
application, to the extent permitted by Applicable Law, first to such reserves)
of any available losses, credits or other offsets), (ii) reasonable and
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customary transaction costs properly attributable to such transaction or
proceeding and payable by any Borrower or any of the Restricted Subsidiaries
(other than to an Affiliate) in connection with such transaction or proceeding,
including, without limitation, commissions, and (iii) until actually received by
any Borrower or any of the Restricted Subsidiaries, any portion of the amount
(x) received and held in escrow or (y) evidenced by a promissory note or other
evidence of Indebtedness issued by a purchaser or non-compete, consulting or
management agreement or covenant or (z) otherwise for which compensation is paid
over time. Upon receipt by any Borrower or any of the Restricted Subsidiaries of
(A) amounts referred to in item (iii) of the preceding sentence, or (B) if there
shall occur any reduction in the tax reserves referred to in item (i) of the
preceding sentence resulting in a payment to any Borrower or any of the
Restricted Subsidiaries, such amounts shall then be deemed to be "Net Proceeds."
"Non-Excluded Taxes" shall have the meaning ascribed thereto in Section
10.3(a) hereof.
"Non-U.S. Bank" shall have the meaning ascribed thereto in Section 2.8(a)
hereof.
"Notes" shall mean, collectively, the Revolving Loan Notes, the Term Loan A
Notes, and the Term Loan B Notes.
"Obligations" shall mean all payment and performance obligations of every
kind, nature and description of the Borrowers, the Restricted Subsidiaries, and
any other obligors to the Lenders (and with respect to Interest Hedge Agreements
which are Loan Documents, the counter-party to such Interest Hedge Agreement),
the Issuing Bank or the Administrative Agent, or any of them, under this
Agreement and the other Loan Documents (including, without limitation, any
interest, fees and other charges on the Loans or otherwise under the Loan
Documents that would accrue but for the filing of a bankruptcy action with
respect to any Borrower, whether or not such claim is allowed in such bankruptcy
action, Obligations to the Lenders pursuant to Section 5.12 hereof and the
Letter of Credit Obligations), as they may be amended from time to time, or as a
result of making the Loans, whether such obligations are direct or indirect,
absolute or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, arising by operation of law or otherwise, now existing or
hereafter arising.
"Operating Cash Flow" shall mean, for any fiscal year, (a) the sum of (i)
Operating Cash Flow (Towers) and (ii) Operating Cash Flow (Other Business) for
such year, minus (b) corporate overhead (exclusive of amortization and
depreciation) of the Borrowers and the Restricted Subsidiaries (on a
consolidated basis) for the four fiscal quarters ending on the calculation date.
"Operating Cash Flow (Towers)" shall mean, with respect to the Borrowers
and their Restricted Subsidiaries on a consolidated basis as of the end of any
period, (a) the sum of (i) operating revenues of the Borrowers and the
Restricted Subsidiaries in connection with the Tower Operation Business plus
(ii) Unrestricted Subsidiary Distributions with respect to businesses of such
Persons of the same type as the Tower Operation Business during such period,
minus (b) operating expenses attributable to such Tower Operation Business for
such period. In the case of determining Operating Cash Flow (Towers) under
Sections 2.3, 7.8, 7.9,
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7.10, 7.11 and 7.15 hereof following an Acquisition of a Tower Operation
Business permitted hereunder, Operating Cash Flow (Towers) shall include the
Acquisition Operating Cash Flow. For purposes of calculating Operating Cash Flow
(Towers) in connection with any Advance for an Acquisition of a Tower Operation
Business, Operating Cash Flow (Towers) as of the last day of the immediately
preceding calendar month end shall include "operating cash flow (towers)" for
the Acquisition for the same period after giving effect to adjustments
reasonably satisfactory to the Administrative Agent. For purposes of this
definition, Operating Cash Flow (Towers) shall include the foregoing items (each
calculated in a manner substantially similar to the financial statements
required to be delivered pursuant to Sections 6.1 and 6.2 hereof and otherwise
in all respects reasonably satisfactory to the Administrative Agent) with
respect to any Person with whom any Borrower or any Restricted Subsidiary has
entered into a Loan-Purchase Agreement; provided, however, that with respect to
any such Person such items shall not be included for any period exceeding twelve
(12) calendar months unless such Person becomes a Restricted Subsidiary of such
Borrower; and provided further, however, that Operating Cash Flow with respect
to any such Persons for any fiscal year shall not exceed $3,000,000.00 in the
aggregate.
"Operating Cash Flow (Other Business)" shall mean, with respect to the
Borrowers and their Restricted Subsidiaries on a consolidated basis as of the
end of any period, (a) the sum of (i) operating revenues of the Borrowers and
the Restricted Subsidiaries in connection with the Other Business plus (ii)
Unrestricted Subsidiary Distributions with respect to businesses of such Persons
of the same type as the Other Business during such period, minus (b) operating
expenses attributable to such Other Business for such period. In the case of
determining Operating Cash Flow (Other Business) under Sections 2.3, 7.8, 7.9,
7.10, 7.11 and 7.15 hereof following an Acquisition of Other Business permitted
hereunder, Operating Cash Flow (Other Business) shall include the Acquisition
Operating Cash Flow. For purposes of calculating Operating Cash Flow (Other
Business) in connection with any Advance for an Acquisition of Other Business,
Operating Cash Flow (Other Business) as of the last day of the immediately
preceding calendar month end shall include "operating cash flow (other
business)" for the Acquisition for the same period after giving effect to
adjustments reasonably satisfactory to the Administrative Agent. For purposes of
this definition, Operating Cash Flow (Other Business) shall include the
foregoing items (each calculated in a manner substantially similar to the
financial statements required to be delivered pursuant to Sections 6.1 and 6.2
hereof and otherwise in all respects satisfactory to the Administrative Agent)
with respect to any Person with whom any Borrower and/or any Restricted
Subsidiary has entered into a Loan-Purchase Agreement; provided, however, that
with respect to any such Person such items shall not be included for any period
exceeding twelve (12) calendar months unless such Person becomes a Restricted
Subsidiary of such Borrower; and provided further, however, that Operating Cash
Flow with respect to any such Persons for any fiscal year shall not exceed
$3,000,000.00 in the aggregate.
"Other Business" shall mean all businesses of the Borrowers and their
Restricted Subsidiaries (other than the Tower Operation Business), including,
without limitation, the Teleport Business, the video, voice and data
transmission business, the site acquisition business and interest income
received in respect of Investments permitted hereunder.
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"Parent" shall mean American Tower Corporation, a Delaware corporation.
"Parent Guaranty" shall mean that certain Amended and Restated Parent
Guaranty dated as of January 6, 2000 made by the Parent for the ratable benefit
of the Administrative Agent, the Lenders and the Issuing Bank.
"Parent Pledge Agreement" shall mean that certain Amended and Restated
Parent Pledge Agreement dated as of January 6, 2000 by the Parent in favor of
the Administrative Agent, for itself and on behalf of the Lenders and the
Issuing Bank, as amended from time to time.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean, collectively, as applied to any Person:
(a) any Lien in favor of the Administrative Agent, the Lenders and the
Issuing Bank given to secure the Obligations;
(b) (i) Liens on real estate or other property for taxes, assessments,
governmental charges or levies not yet delinquent and (ii) Liens for taxes,
assessments, judgments, governmental charges or levies or claims the non-payment
of which is being diligently contested in good faith by appropriate proceedings
and for which adequate reserves have been set aside on such Person's books, but
only so long as no foreclosure, distraint, sale or similar proceedings have been
commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, vendors (solely to the
extent arising by operation of law), laborers and materialmen incurred in the
ordinary course of business for sums not yet due or being diligently contested
in good faith, if reserves or appropriate provisions shall have been made
therefor;
(d) Liens incurred in the ordinary course of business in connection
with worker's compensation and unemployment insurance, social security
obligations, assessments or government charges which are not overdue for more
than sixty (60) days;
(e) restrictions on the transfer of the Licenses or assets of any
Borrower or any of the Restricted Subsidiaries imposed by any of the Licenses as
presently in effect or by the Communications Act and any regulations thereunder;
(f) easements, rights-of-way, zoning restrictions, licenses,
reservations or restrictions on use and other similar encumbrances on the use of
real property which do not materially interfere with the ordinary conduct of the
business of such Person or the use of such property;
-20-
(g) Liens arising by operation of law in favor of purchasers in
connection with any asset sale permitted hereunder; provided, however, that such
Lien only encumbers the property being sold;
(h) Liens reflected by Uniform Commercial Code financing statements
filed in respect of Capitalized Lease Obligations permitted pursuant to Section
7.1 hereof and true leases of any Borrower or any of the Restricted
Subsidiaries;
(i) Liens to secure performance of statutory obligations, surety or
appeal bonds, performance bonds, bids or tenders;
(j) judgment Liens which do not result in an Event of Default under
Section 8.1(h) hereof;
(k) Liens in connection with escrow deposits made in connection with
Acquisitions permitted hereunder; and
(l) Liens of a nature contemplated by the third to last sentence of
Section 5.13 hereof.
"Person" shall mean an individual, corporation, limited liability company,
association, partnership, joint venture, trust or estate, an unincorporated
organization, a government or any agency or political subdivision thereof, or
any other entity.
"Plan" shall mean an employee benefit plan within the meaning of Section
3(3) of ERISA or any other employee benefit plan maintained for employees of any
Person or any affiliate of such Person.
"Principal Shareholders" shall mean, collectively, (a) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, (b)
the legal heirs of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, (c) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (d) the legal heirs of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (e) J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., (f) the legal heirs of J. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇., (g) ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and (h) any Person the securities of
which would be deemed to be beneficially owned by any of the foregoing Persons
pursuant to the provisions of Rule 13(d)(3) under the Exchange Act.
"Prior Loan Agreement" shall mean that certain Amended and Restated Loan
Agreement dated as of January 6, 2000 by and among the Borrowers, the financial
institutions parties thereto, as Lenders, and Toronto Dominion (Texas), Inc., as
Administrative Agent, as heretofore amended, modified, restated and
supplemented.
"Pro Forma Debt Service" shall mean with respect to the twelve (12)
calendar month period following the calculation date, and after giving effect to
any Interest Hedge Agreements and LIBOR Advances, the sum of the amount of all
of the following with respect to the Borrowers and the Restricted Subsidiaries,
on a consolidated basis: (a) scheduled payments of principal on Indebtedness for
Money Borrowed (determined, with respect to the Revolving
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Loans only, as the difference between the outstanding principal amount of the
Revolving Loans and Letter of Credit Obligations on the calculation date and the
amount the Revolving Loan Commitments will be on the last day of such period)
for such period; (b) Interest Expense for such period; (c) fees payable under
this Agreement for such period; (d) other payments payable by such Persons
during such period in respect of Indebtedness for Money Borrowed (other than
voluntary repayments); and (e) all Restricted Payments to be made by the
Borrowers to the Parent which will be necessary to make interest payments during
such period on the (i) Convertible Notes and/or (ii) Senior Notes due 2009
and/or (iii) any refinancings of the foregoing that would not cause a Default
under Section 8.1(p) hereof. For purposes of this definition, where interest
payments for the twelve (12) month period immediately succeeding the calculation
date are not fixed by way of Interest Hedge Agreements, LIBOR Advances, or
otherwise for the entire period, interest shall be calculated on such
Indebtedness for Money Borrowed for periods for which interest payments are not
so fixed at the lesser of (i) the LIBOR Basis (based on the then current
adjustment under Section 2.3(f) hereof) for a LIBOR Advance having an Interest
Period of six (6) months as determined on the date of calculation and (ii) the
Base Rate Basis as in effect on the date of calculation; provided, however, that
if such LIBOR Basis cannot be determined in the reasonable opinion of the
Administrative Agent, such interest shall be calculated using the Base Rate
Basis as then in effect.
"Proceeds Account" shall have the meaning ascribed thereto in Section 5.16
hereof.
"Projections" shall have the meaning ascribed thereto in Section 4.1(r)
hereof.
"Register" shall have the meaning ascribed thereto in Section 11.5(g)
hereof.
"Registered Noteholder" shall mean each Non-U.S. Bank that requests or
holds a Registered Note pursuant to Section 2.8(a) hereof or registers its Loans
pursuant to Section 11.5(g) hereof.
"Registered Notes" shall mean, collectively, those certain Notes that have
been issued in registered form in accordance with Sections 2.8(a) and 11.5(g)
hereof and each of which bears the following legend: "This is a Registered Note,
and this Registered Note and the Loans evidenced hereby may be assigned or
otherwise transferred in whole or in part only by registration of such
assignment or transfer on the Register and in compliance with all other
requirements provided for in the Loan Agreement."
"Regulations" shall have the meaning ascribed thereto in Section 4.1(n)
hereof.
"Related Party" shall mean with respect to any individual (i) any immediate
family member of such individual or (ii) any Person, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an eighty percent
(80%) or more controlling interest of which consist of such individual or an
immediate family member of such individual.
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"Reportable Event" shall mean, with respect to any Employee Pension Plan,
an event described in Section 4043(c) of ERISA (other than a "reportable event"
not subject to the provision for thirty (30)-day notice to the PBGC).
"Request for Advance" shall mean a certificate designated as a "Request for
Advance," signed by an Authorized Signatory of any Borrower requesting an
Advance, Continuation or Conversion hereunder, which shall be in substantially
the form of Exhibit A attached hereto, and shall, among other things, (i)
specify the date of the requested Advance, Continuation or Conversion (which
shall be a Business Day), the amount of the Advance, the type of Advance (LIBOR
or Base Rate), and, with respect to LIBOR Advances, the Interest Period with
respect thereto, (ii) state that there shall not exist, on the date of the
requested Advance, Continuation or Conversion and after giving effect thereto, a
Default, (iii) specify the Applicable Margin then in effect, (iv) designate the
amount of the Revolving Loan Commitments being drawn (if any), and (v) designate
the amount of the Revolving Loans, Term Loan A Loans and Term Loan B Loans being
Continued or Converted.
"Request for Issuance of Letter of Credit" shall mean any certificate
signed by an Authorized Signatory of any Borrower requesting that the Issuing
Bank issue a Letter of Credit hereunder, which certificate shall be in
substantially the form of Exhibit B attached hereto and shall, among other
things, specify (a) that the requested Letter of Credit is either a Commercial
Letter of Credit or a Standby Letter of Credit, (b) the stated amount of the
Letter of Credit, (c) the effective date for the issuance of the Letter of
Credit (which shall be a Business Day), (d) the date on which the Letter of
Credit is to expire (which shall be a Business Day), (e) the Person for whose
benefit such Letter of Credit is to be issued and (f) other relevant terms of
such Letter of Credit.
"Restricted Payment" shall mean any direct or indirect distribution,
dividend or other payment to any Person (other than to any Borrower or any of
the Restricted Subsidiaries) on account of (a) any general or limited
partnership or limited liability company interest in, or shares of Capital Stock
or other equity securities of, any Borrower or any Restricted Subsidiary (other
than dividends payable solely in general or limited partnership or limited
liability company interests or stock of such Person or in warrants or other
rights or options to acquire such partnership or limited liability company
interests or stock and stock splits), including, without limitation, any direct
or indirect distribution, dividend or other payment to any Person (other than to
any Borrower or any of the Restricted Subsidiaries) on account of any warrants
or other rights or options to acquire shares of Capital Stock of any Borrower or
any of the Restricted Subsidiaries, or (b) any management or similar agreement
with an Affiliate of such Person not (i) in compliance with Section 7.12 hereof
or (ii) in the ordinary course of business or (c) any cash interest or principal
payment on the 2003 Senior Subordinated Discount Notes (except in connection
with a refinancing thereof permitted under this Agreement).
"Restricted Subsidiary" shall mean any Subsidiary of any Borrower other
than an Unrestricted Subsidiary which (a) is organized under the laws of, or
owns, operates, constructs, or manages towers in the United States of America,
Brazil or Mexico or in such other
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jurisdictions as the Majority Lenders may from time to time approve by prior
written consent, provided that such Subsidiary (i) is permitted to pay
dividends, (ii) has no liens other than Permitted Liens and (iii) upon becoming
a Restricted Subsidiary shall not cause a Default or Event of Default; and (b)
has complied with the requirements of Section 5.13 hereof (or delivered
comparable documents to effect the purpose of such Section 5.13). The Restricted
Subsidiaries as of the Agreement Date are as set forth on Schedule 2 attached
hereto.
"Revolving Loan Commitments" shall mean the several obligations of the
Lenders having a Revolving Loan Commitment to advance to the Borrowers an
aggregate amount of up to $650,000,000.00 at any one time outstanding, in
accordance with their respective Commitment Ratios for Revolving Loans, to the
Borrowers and as such obligations may be reduced from time to time, in each
case, pursuant to the terms hereof; and "Revolving Loan Commitment" shall mean
the individual commitment of each such Lender to advance Revolving Loans
hereunder.
"Revolving Loan Maturity Date" shall mean June 30, 2007, or such earlier
date as payment of the Revolving Loans shall be due (whether by acceleration,
reduction of the Revolving Loan Commitments to zero or otherwise).
"Revolving Loan Notes" shall mean, collectively, those certain revolving
promissory notes in an aggregate original principal amount of the Revolving Loan
Commitments, one (1) issued by the Borrowers to each of the Lenders having a
Revolving Loan Commitment, each one substantially in the form of Exhibit C
attached hereto, and any extensions, renewals or amendments to, or replacements
of, the foregoing.
"Revolving Loans" shall mean, collectively, the amounts advanced by the
Lenders having Revolving Loan Commitments to the Borrowers under the Revolving
Loan Commitments, and evidenced by the Revolving Loan Notes.
"Scheduled Revolving Loan Payments" shall mean, collectively, for any
period, with respect to the Revolving Loans, (a) the highest principal amount of
the Revolving Loans outstanding during such period minus (b) the Revolving Loan
Commitments on the last day of such period.
"Sconnix Note" shall mean the note of Sconnix Broadcasting Company, a New
Hampshire limited partnership (a true and correct copy of which has been
delivered to the Administrative Agent), in the aggregate principal amount of
$12,000,000.00, acquired by AT Inc. in connection with the merger of
Intracoastal Broadcasting, Inc., a Delaware corporation, into AT Inc.
"Security Documents" shall mean, collectively, the Borrower Guaranties,
each Borrower Security Agreement, the Borrower Stock Pledge Agreement, all
Subsidiary Guaranties, all Subsidiary Pledge Agreements, all Subsidiary Security
Agreements, all Assignments of Intercompany Notes, all Subordination Agreements,
each Assignment of General Partner
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Interests, each Assignment of Limited Partner Interests, the Parent Pledge
Agreement, the Parent Guaranty, the ATC GP Guaranty, the ATC GP Security
Agreement, the ATC Holding Guaranty, the ATC Holding Security Agreement, the AT
LLC Assumption Agreement, any other agreement, document or instrument providing
collateral for the Obligations whether now or hereafter in existence, and any
filings, instruments, agreements, and documents related thereto or to this
Agreement, and providing the Administrative Agent, the Lenders and the Issuing
Bank, with Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the Administrative
Agent, the Lenders and the Issuing Bank, created hereunder or under any of the
Security Documents to secure the Obligations.
"Senior Debt" shall mean, for the Borrowers and its Restricted Subsidiaries
on a consolidated basis as of any date, the remainder of (i) Total Debt on such
date minus (ii) the accreted value of the 2003 Senior Subordinated Discount
Notes on such date.
"Senior Notes Due 2009" shall mean the $1,000,000,000.00 9 3/8% Senior
Notes due 2009 of the Parent, issued pursuant to that certain Indenture dated
January 31, 2001, with The Bank of New York, as Trustee.
"SPC" shall have the meaning ascribed thereto in Section 11.5(j) hereof.
"Standard and Poor's" shall mean Standard and Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors.
"Standby Letter of Credit" shall mean a letter of credit issued by the
Issuing Bank in accordance with the terms hereof to support obligations of any
Borrower or any of the Restricted Subsidiaries incurred in the ordinary course
of business, and which is not a Commercial Letter of Credit.
"Subordination Agreements" shall mean, collectively, (a) that certain
Subordination Agreement among ATC Operating, ATC LP and the Administrative Agent
and (b) that certain Subordination Agreement among ATC Holding, ATC GP and the
Administrative Agent, case dated January 6, 2000.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation of
which no less than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or limited liability company of which no less than fifty percent
(50%) of the outstanding partnership or limited liability company interests, is
at the time owned directly or indirectly by such Person, or by one or more
Subsidiaries of such Person, or by such Person and one or more Subsidiaries of
such Person; provided, however, that if such Person and/or such Person's
Subsidiaries directly
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or indirectly own no more than fifty percent (50%) of such Subsidiary's
ownership interests, then such Subsidiary's operating or governing documents
must require (i) such Subsidiary's net cash after the establishment of reserves
be distributed to its equity holders no less frequently than quarterly and (ii)
the consent of such Person and/or such Person's Subsidiaries to amend or
otherwise modify the provisions of such operating or governing documents
requiring such distributions, or (b) any other entity which is directly or
indirectly controlled or capable of being controlled by such Person, or by one
or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person.
"Subsidiary Guaranty" shall mean that certain Amended and Restated
Subsidiary Guaranty dated January 6, 2000 in favor of the Administrative Agent,
the Lenders and the Issuing Bank, given by each Restricted Subsidiary, and shall
include any similar agreements executed pursuant to Section 5.13 hereof, each
substantially in the form of Exhibit D attached hereto.
"Subsidiary Pledge Agreement" shall mean that certain Amended and Restated
Subsidiary Pledge Agreement dated January 6, 2000 made by each Restricted
Subsidiary having one or more of its own Restricted Subsidiaries, on the one
hand, in favor of the Administrative Agent, for itself and on behalf of the
Lenders and the Issuing Bank, on the other hand, and shall include any similar
agreements executed pursuant to Section 5.13 hereof, each substantially in the
form of Exhibit E attached hereto.
"Subsidiary Security Agreement" shall mean that certain Amended and
Restated Subsidiary Security Agreement dated January 6, 2000 made by each
Restricted Subsidiary, on the one hand, in favor of the Administrative Agent,
for itself and on behalf of the Lenders and the Issuing Bank, on the other hand,
each substantially in the form of Exhibit F attached hereto, and shall include
any similar agreements executed pursuant to Section 5.13 hereof.
"Teleport Business" shall mean the business of owning, operating and
managing satellite up-link facilities.
"Term Loan A Commitments" shall mean the aggregate portion of the Term Loan
A Commitments held by the Lenders holding Term Loan A Loans, as set forth on
Schedule 7 attached hereto, which portion shall be reduced in an amount equal to
reductions of the Term Loan A Loans made from time to time, pursuant to the
terms hereof; and "Term Loan A Commitment" shall mean the individual commitment
of each such Lender holding Term Loan A Loans.
"Term Loan A Loans" shall mean, collectively, the Loans outstanding
hereunder that are evidenced by the Term Loan A Notes.
"Term Loan A Maturity Date" shall mean June 30, 2007, or such earlier date
as the payment of the Term Loan A Loans shall be due (whether by acceleration or
otherwise).
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"Term Loan A Notes" shall mean, collectively, those certain term promissory
notes in the aggregate original principal amount of $850,000,000.00, one (1)
issued by the Borrowers to each of the Lenders having Term Loan A Loans, each
one substantially in the form of Exhibit G attached hereto, and any extensions,
modifications, renewals or replacements of, or amendments to, any of the
foregoing.
"Term Loan B Commitments" shall mean the aggregate portion of the Term Loan
B Commitments held by the Lenders holding Term Loan B Loans, as set forth on
Schedule 7 attached hereto, which portion shall be reduced in an amount equal to
reductions of the Term Loan B Loans made from time to time, pursuant to the
terms hereof; and "Term Loan B Commitment" shall mean the individual commitment
of each such Lender holding Term Loan B Loans.
"Term Loan B Loans" shall mean, collectively, the Loans outstanding
hereunder that are evidenced by the Term Loan B Notes.
"Term Loan B Maturity Date" shall mean December 31, 2007, or such earlier
date as the payment of the Term Loan B Loans shall be due (whether by
acceleration, or otherwise).
"Term Loan B Notes" shall mean, collectively, those certain term promissory
notes in the aggregate original principal amount of $500,000,000.00, one (1)
issued by the Borrowers to each of the Lenders having Term Loan B Loans, each
one substantially in the form of Exhibit H attached hereto, and any extension,
modifications, renewals or replacements of, or amendments to, any of the
foregoing.
"Total Debt" shall mean, for the Borrowers and the Restricted Subsidiaries
on a consolidated basis as of any date, the sum (without duplication) of (i) the
outstanding principal amount of the Loans, (ii) the aggregate amount of
Indebtedness for Money Borrowed of such Persons, and (iii) the aggregate amount
of all Guaranties by such Persons of Indebtedness for Money Borrowed.
"Tower Operation Business" shall mean the ownership, leasing and tower
management businesses of the Borrowers and their Restricted Subsidiaries.
"Towersites Monitoring" shall mean Towersites Monitoring, Inc., a Delaware
corporation.
"Triton" shall mean Triton PCS, Inc., a Delaware corporation, and its
Affiliates.
"TV Azteca" shall mean TV Azteca, S.A. de C.V., a sociedad anonima de
capital variable organized under the laws of the United Mexican States.
"Unreinvested Net Proceeds" shall mean the aggregate Net Proceeds other
than Net Proceeds (a) with respect to which any Borrower has notified the
Administrative Agent in
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writing that the Borrowers intend to use any or all of such Net Proceeds to
acquire fixed or capital assets permitted by Section 7.6 hereof or for the
construction of new towers within twelve (12) months of the date of receipt of
such Net Proceeds and (b) which Net Proceeds are actually used or irrevocably
committed by a Borrower to be used within such twelve (12) month period;
provided, however, that once applied to reduce the Revolving Loan Commitments or
repay Loans hereunder, such Unreinvested Net Proceeds shall cease to be
Unreinvested Net Proceeds.
"Unrestricted Subsidiary" shall mean any Subsidiary of any Borrower or any
joint venture (which may represent a minority interest) between any Borrower
and/or any of their Subsidiaries and any other Person, in each case, which any
Borrower has heretofore designated or hereafter designates as an Unrestricted
Subsidiary by written notice to the Administrative Agent and the Lenders prior
to the formation or acquisition of such Subsidiary or joint venture.
Notwithstanding the foregoing, no Restricted Subsidiary may be re-designated as
an Unrestricted Subsidiary without the prior consent of the Majority Lenders and
ATC LP may not be designated as an Unrestricted Subsidiary without the consent
of all of the Lenders. The Unrestricted Subsidiaries as of the Agreement Date
are as set forth Schedule 2 attached hereto. All Subsidiaries of any
Unrestricted Subsidiary, now or hereafter existing, shall be Unrestricted
Subsidiaries.
"Unrestricted Subsidiary Distributions" shall mean, collectively, the
aggregate amount of cash distributions received during such period by any
Borrower or any of the Restricted Subsidiaries from any Unrestricted Subsidiary
(other than in connection with the repayment of intercompany Indebtedness
permitted hereunder).
"U.S. Person" shall mean a citizen or resident of the United States of
America, a corporation, partnership or other entity created or organized in or
under any laws of the United States of America, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income.
"Verestar Entity" shall mean any of Verestar, Inc. or any Subsidiary of
Verestar, Inc. which has executed and delivered any agreement, document or
instrument guaranteeing or providing collateral for the Obligations.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended or supplemented from time to time in accordance
herewith.
Section 1.2 Interpretation. Except where otherwise specifically restricted,
reference to a party to this Agreement or any other Loan Document includes that
party and its successors and assigns. All capitalized terms used herein which
are defined in Article 9 of the Uniform Commercial Code in effect in the State
of New York on the date hereof and which are not otherwise defined herein shall
have the same meanings herein as set forth therein. Whenever any agreement,
promissory note or other instrument or document is defined in this Agreement,
such definition shall be deemed to mean and include, from and after the date of
any amendment, restatement, supplement, confirmation or modification thereof,
such agreement, promissory note
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or other instrument or document as so amended, restated, supplemented, confirmed
or modified. All terms defined in this Agreement in the singular shall have
comparable meanings when used in the plural and vice versa. The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement.
Section 1.3 Cross References. Unless otherwise specified, references in
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause in
such Article, Section or definition.
Section 1.4 Accounting Provisions. Subject to Section 11.6, all accounting
terms used in this Agreement which are not expressly defined herein shall have
the respective meanings given to them in accordance with GAAP, all computations
shall be made in accordance with GAAP, and all balance sheets and other
financial statements shall be prepared in accordance with GAAP. All financial or
accounting calculations or determinations required pursuant to this Agreement,
unless otherwise expressly provided, shall be made on a consolidated basis for
the Borrowers and the Restricted Subsidiaries.
ARTICLE 2 Loans
Section 2.1 The Loans.
(a) Revolving Loans. The Lenders having Revolving Loan Commitments
agree severally, and not jointly, upon the terms and subject to the conditions
of this Agreement to lend to the Borrowers (on a joint and several basis) from
time to time prior to the Revolving Loan Maturity Date amounts which do not
exceed, (i) in the aggregate at any one time outstanding, the Revolving Loan
Commitments as reduced hereunder from time to time and prior to the Agreement
Date under the Prior Loan Agreement and, (ii) individually, such Lender's
Revolving Loan Commitment, in each case, as in effect from time to time;
provided, however, that the Borrowers may not request (and the Lenders shall
have no obligation to make) an Advance under this Section 2.1(a) in excess of
the Available Revolving Loan Commitment on such date. After giving effect to
prepayments made prior to the Agreement Date under the Prior Loan Agreement, the
Revolving Loan Commitments on the Agreement Date are $647,109,172.21.
(b) Term Loan A Loans. The Term Loan A Loans were advanced prior to
the Agreement Date under the Prior Loan Agreement and as of the Agreement Date
the principal amount of the Term Loan A Loans outstanding is $836,394,245.00
(after giving effect to prepayments made prior to the Agreement Date under the
Prior Loan Agreement). Amounts repaid under the Term Loan A Commitments may not
be reborrowed.
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(c) Term Loan B Loans. The Term Loan B Loans were advanced prior to
the Agreement Date under the Prior Loan Agreement and as of the Agreement Date
the principal amount of the Term Loan B Loans outstanding is $491,996,602.89
(after giving effect to prepayments made prior to the Agreement Date under the
Prior Loan Agreement). Amounts repaid under the Term Loan B Commitments may not
be reborrowed.
(d) Letters of Credit. Subject to the terms and conditions of this
Agreement, the Issuing Bank agrees to issue Letters of Credit for the account of
the Borrowers on a joint and several basis (and on behalf of the Restricted
Subsidiaries) pursuant to Section 2.14 hereof in an aggregate amount not to
exceed the Available Letter of Credit Commitment determined immediately prior to
giving effect to the issuance thereof.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance hereunder shall, at the
option of the requesting Borrower, be made as a Base Rate Advance or a LIBOR
Advance; provided, however, that at such time as there shall have occurred and
be continuing a Default hereunder, none of the Borrowers shall have the right to
receive or Continue a LIBOR Advance or to Convert a Base Rate Advance to a LIBOR
Advance. Any notice given to the Administrative Agent in connection with a
requested Advance hereunder shall be given to the Administrative Agent prior to
11:00 a.m. (New York, New York time) in order for such Business Day to count
toward the minimum number of Business Days required.
(b) Base Rate Advances.
(i) Advances. A Borrower shall give the Administrative Agent in
the case of Base Rate Advances at least one (1) Business Day's irrevocable
prior telephonic notice followed immediately by a Request for Advance;
provided, however, that such Borrower's failure to confirm any telephonic
notice with a Request for Advance shall not invalidate any notice so given
if acted upon by the Administrative Agent. Upon receipt of such notice from
a Borrower, the Administrative Agent shall promptly notify each Lender by
telephone or telecopy of the contents thereof.
(ii) Conversions. Any Borrower may, without regard to the
applicable Payment Date and upon at least three (3) Business Days'
irrevocable prior telephonic notice followed by a Request for Advance,
Convert all or a portion of the principal of a Base Rate Advance to a LIBOR
Advance. On the date indicated by the applicable Borrower, such Base Rate
Advance shall be so Converted. The failure to give timely notice hereunder
with respect to the Payment Date of any Base Rate Advance shall be
considered a request for a Base Rate Advance.
(c) LIBOR Advances. Upon request, the Administrative Agent, whose
determination in absence of manifest error shall be conclusive, shall determine
the available
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LIBOR Bases and shall notify the requesting Borrower of such LIBOR Bases to
apply for the applicable LIBOR Advance.
(i) Advances. A Borrower shall give the Administrative Agent in
the case of LIBOR Advances at least three (3) Business Days' irrevocable
prior telephonic notice followed immediately by a Request for Advance;
provided, however, that such Borrower's failure to confirm any telephonic
notice with a Request for Advance shall not invalidate any notice so given
if acted upon by the Administrative Agent. Upon receipt of such notice from
a Borrower, the Administrative Agent shall promptly notify each Lender by
telephone or telecopy of the contents thereof.
(ii) Conversions and Continuations. At least three (3) Business
Days prior to the Payment Date for each LIBOR Advance, the applicable
Borrower shall give the Administrative Agent telephonic notice followed by
written notice specifying whether all or a portion of such LIBOR Advance
(A) is to be Continued in whole or in part as one or more LIBOR Advances,
(B) is to be Converted in whole or in part to a Base Rate Advance, or (C)
is to be repaid. The failure to give such notice shall preclude the
Borrowers from Continuing such Advance as a LIBOR Advance on its Payment
Date and shall be considered a request to Convert such Advance to a Base
Rate Advance. Upon such Payment Date such LIBOR Advance will, subject to
the provisions hereof, be so Continued, Converted or repaid, as applicable.
(d) Notification of Lenders. Upon receipt of irrevocable prior
telephonic notice in accordance with Section 2.2(b) or (c) hereof or a Request
for Advance, or a notice of Conversion or Continuation from a Borrower with
respect to any outstanding Advance prior to the Payment Date for such Advance,
the Administrative Agent shall promptly but no later than the close of business
on the day of such notice notify each Lender having the applicable Commitment by
telephone, followed promptly by written notice or telecopy, of the contents
thereof and the amount of such Lender's portion of the Advance. Each Lender
having the applicable Commitment shall, not later than 12:00 noon (New York, New
York time) on the date of borrowing specified in such notice, make available to
the Administrative Agent at the Administrative Agent's Office, or at such
account as the Administrative Agent shall designate, the amount of its portion
of any Advance that represents an additional borrowing hereunder in immediately
available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York, New York time) on the date of
an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse the
amounts made available to the Administrative Agent by the Lenders in like
funds by (A) transferring the amounts so made available by wire transfer
pursuant to the requesting Borrower's instructions, or (B) in the absence
of such instructions, crediting the amounts so made available to the
account of the requesting Borrower maintained with the Administrative
Agent.
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(ii) Unless the Administrative Agent shall have received notice
from a Lender having an applicable Commitment prior to 12:00 noon (New
York, New York time) on the date of any Advance that such Lender will not
make available to the Administrative Agent such Lender's ratable portion of
such Advance, the Administrative Agent may assume that such Lender has made
or will make such portion available to the Administrative Agent on the date
of such Advance and the Administrative Agent may in its sole discretion and
in reliance upon such assumption, make available to the requesting Borrower
on such date a corresponding amount. If and to the extent an applicable
Lender does not make such ratable portion available to the Administrative
Agent, such Lender agrees to repay to the Administrative Agent on demand
such corresponding amount together with interest thereon, for each day from
the date such amount is made available to the requesting Borrower until the
date such amount is repaid to the Administrative Agent, at the Federal
Funds Rate.
(iii) If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
portion of the applicable Advance for purposes of this Agreement. If such
Lender does not repay such corresponding amount immediately upon the
Administrative Agent's demand therefor, the Administrative Agent shall
notify the Borrowers, and the Borrowers shall immediately pay such
corresponding amount to the Administrative Agent, with interest at the
Federal Funds Rate. The failure of any Lender to fund its portion of any
Advance shall not relieve any other Lender of its obligation, if any,
hereunder to fund its respective portion of the Advance on the date of such
borrowing, but no Lender shall be responsible for any such failure of any
other Lender.
(iv) In the event that, at any time when there is no Default and
each of the conditions in Section 3.2 hereof has been satisfied, a Lender
having an applicable Commitment for any reason fails or refuses to fund its
portion of an Advance and such failure shall continue for a period in
excess of thirty (30) days, then, until such time as such Lender has funded
its portion of such Advance (which late funding shall not absolve such
Lender from any liability it may have to the Borrowers), or all other
Lenders have received payment in full from the Borrowers (whether by
repayment or prepayment) or otherwise of the principal and interest due in
respect of such Advance, such non-funding Lender shall not have the right
(A) to vote regarding any issue on which voting is required or advisable
under this Agreement or any other Loan Document, and such Lender's portion
of the applicable Loans shall not be counted as outstanding for purposes of
determining "Majority Lenders" hereunder, and (B) to receive payments of
principal, interest or fees from the Borrowers, the Administrative Agent or
the other Lenders in respect of its portion of the applicable Loans until
all applicable Loans of the other Lenders have been fully paid.
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Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate Advance shall be
computed on the basis of a year of 365/366 days for the actual number of days
elapsed and shall be payable at the Base Rate Basis for such Advance, in arrears
on the applicable Payment Date. Interest on Base Rate Advances then outstanding
shall also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance shall be
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such LIBOR Advance shall also be
due and payable in arrears on every three (3) month anniversary of the beginning
of such Interest Period. Interest on LIBOR Advances then outstanding shall also
be due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate Basis. If a
Borrower fails to give the Administrative Agent timely notice of its selection
of a LIBOR Basis, or if for any reason a determination of a LIBOR Basis for any
Advance is not timely concluded, the Base Rate Basis shall apply to such
Advance.
(d) Interest Upon Event of Default. Immediately upon the occurrence of
an Event of Default hereunder, the outstanding principal balance of the Loans
shall bear interest at the Default Rate. Such interest shall be payable on
demand by the Majority Lenders and shall accrue until the earlier of (i) waiver
or cure of the applicable Event of Default, (ii) agreement by the Majority
Lenders (or, if applicable to the underlying Event of Default, the Lenders) to
rescind the charging of interest at the Default Rate or (iii) payment in full of
the Obligations.
(e) LIBOR Contracts. At no time may the number of outstanding LIBOR
Advances hereunder exceed twelve (12).
(f) Applicable Margin.
(i) Revolving Loans and Term Loan A Loans. With respect to any
Revolving Loans or the Term Loan A Loans, the Applicable Margin shall be as
set forth in a certificate of the chief financial officer of a Borrower
delivered to the Administrative Agent based upon the Leverage Ratio for the
most recent fiscal quarter end for which financial statements are furnished
by the Borrowers to the Administrative Agent and each Lender for the fiscal
quarter most recently ended as follows:
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Base Rate LIBOR Advance
Advance Applicable Applicable
Leverage Ratio Margin Margin
--------------------------------------------- ------------------ -------------
A. Greater than 7.00 to 1.00 2.250% 3.250%
B. Greater than 6.50 to 1.00, but less than
or equal to 7.00 to 1.00 2.000% 3.000%
C. Greater than 6.00 to 1.00, but less than
or equal to 6.50 to 1.00 1.750% 2.750%
D. Greater than 5.00 to 1.00, but less than
or equal to 6.00 to 1.00 1.500% 2.500%
E. Greater than 4.00 to 1.00, but less than
or equal to 5.00 to 1.00 1.250% 2.250%
F. Less than or equal to 4.00 to 1.00 1.000% 2.000%
Notwithstanding the foregoing, the Applicable Margin with respect to the
Revolving Loans and the Term Loan A Loans from January 1, 2003 through and
including September 30, 2003 shall not be less than (A) with respect to
Base Rate Advances, 1.500% and (B) with respect to LIBOR Advances, 2.500%.
(ii) Term Loan B Loans. With respect to any Term Loan B Loans,
the Applicable Margin shall be, (a) with respect to Base Rate Advances,
2.500%, and (b) with respect to LIBOR Advances, 3.500%.
(iii) Changes in Applicable Margin. With respect to Section
2.3(f)(i), changes to the Applicable Margin shall be effective, (i) with
respect to an increase in the Applicable Margin, as of the second (2nd)
Business Day after the day on which the financial statements are required
to be delivered to the Administrative Agent and the Lenders pursuant to
Section 6.1 or 6.2 hereof, as the case may be, provided, however, that if
such financial statements are not delivered to the Administrative Agent and
the Lenders on or before the date specified in such Section, such increase
shall be effective as of the date specified in such Section for delivery of
the financial statements, and (ii) with respect to a decrease in the
Applicable Margin, as of the later of (A) the second (2nd) Business Day
after the day on which such financial statements are required to be
delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be, and
(B) the date on which such financial statements are actually delivered to
the Administrative Agent and the Lenders. With respect to Section 2.3(f)(i)
and (ii) upon the occurrence and during the continuance of an Event of
Default, the Applicable Margins shall not be subject to downward adjustment
and shall automatically revert to the
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Applicable Margins shall not be subject to downward adjustment and shall
automatically revert to the Applicable Margins set forth in, (A) with
respect to Section 2.3(f)(i), part A of the table in Section 2.3(f)(i)
above, and (B) with respect to Section 2.3(f)(ii), part (a) of Section
2.3(f)(ii) above, in each case, until such time as such Event of Default is
cured or waived.
Section 2.4 Commitment and Letter of Credit Fees.
(a) Commitment Fees. The Borrowers agree to pay, on a joint and
several basis, to the Administrative Agent for the account of each of the
Lenders having a Revolving Loan Commitment in accordance with such Lender's
applicable Commitment Ratio, a commitment fee on the unused Revolving Loan
Commitment of such Lender as reduced hereunder from time to time and prior to
the Agreement Date under the Prior Loan Agreement for each day from January 1,
2003 through and including the Revolving Loan Maturity Date, at a rate of (A)
one percent (1.000%) per annum when the Facility Usage during such calendar
quarter was less than or equal to thirty-three and one-third percent (33-1/3%),
(B) three-quarters of one-percent (0.750%) when the Facility Usage during such
calendar quarter was greater than thirty-three and one-third percent (33-1/3%),
but less than or equal to sixty-six and two-thirds percent (66-2/3%), and (C)
one-half of one percent (0.500%) when the Facility Usage during such calendar
quarter was greater than sixty-six and two-thirds percent (66-2/3%). Such
commitment fee shall be computed on the basis of a year of 365/366 days for the
actual number of days elapsed, shall be payable quarterly in arrears on the last
Business Day of each calendar quarter, and shall be fully earned when due and
non-refundable when paid. A final payment of any commitment fee then payable
with respect to the Revolving Loan Commitments shall also be due and payable on
the Revolving Loan Maturity Date.
(b) Letter of Credit Fees.
(i) The Borrowers agree to pay, on a joint and several basis, to
the Issuing Bank a fee on the stated amount (reduced by the amount of any
draws) of any outstanding Letters of Credit from the date of issuance
through and including the expiration date of each such Letter of Credit at
a rate of one eighth of one percent (0.125%) per annum, which fee shall be
computed on the basis of a year of 365/366 days for the actual number of
days elapsed, shall be payable quarterly in arrears on the last Business
Day of each calendar quarter commencing on March 31, 2000, and shall be
fully earned when due and non-refundable when paid.
(ii) The Borrowers agree to pay, on a joint and several basis, to
the Administrative Agent on behalf of the Lenders having a Revolving Loan
Commitment in accordance with their respective Commitment Ratios for the
Revolving Loans (and the Administrative Agent shall promptly pay to the
Lenders having a Revolving Loan Commitment), a fee on the stated amount
(reduced by the amount of any draws) of any outstanding Letters of Credit
for each day from the date of issuance thereof through the expiration date
for each such Letter of Credit at a rate equal to the Applicable Margin for
LIBOR Advances under the Revolving Loan Commitments. Such Letter of Credit
Fee shall be computed on the basis of a year of 365/366 days for the actual
number of days
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elapsed, shall be payable quarterly in arrears for each quarter on the last
Business Day of each calendar quarter commencing on March 31, 2000, and
shall be fully earned when due and non-refundable when paid. The Letter of
Credit Fee set forth in this Section 2.4(b)(ii) shall be subject to
increase and decrease on the dates and in the amounts set forth in Section
2.3(f)(i) hereof in the same manner as the adjustment of the Applicable
Margin with respect to LIBOR Advances upon satisfaction of the requirements
set forth in Section 2.3(f)(i) hereof.
Section 2.5 Mandatory Commitment Reductions.
(a) Scheduled Reductions under Revolving Loan Commitments. Commencing
March 31, 2003, and on the last day of each calendar quarter ending during the
periods set forth below, the Revolving Loan Commitments shall be automatically
and permanently reduced until reduced to zero by the dollar amounts set forth
below:
Quarterly
Amount of Revolving
Reduction Dates Loan Commitment Reduction
------------------------------------------------- --------------------------
March 31, 2003, June 30, 2003, September 30, 2003
and December 31, 2003 $ 9,706,637.58
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 $35,591,004.47
March 31, 2005, June 30, 2005,
September 30, 2005 and December 31, 2005 $45,297,642.05
March 31, 2006, June 30, 2006,
September 30, 2006 and December 31, 2006 $47,724,301.45
March 31, 2007 and June 30, 2007 $46,915,414.99
(b) Reduction From Excess Cash Flow. On or prior to April 15, 2004,
and on or prior to each April 15th thereafter during the term of this Agreement,
the Revolving Loan Commitments shall be automatically and permanently reduced by
an amount equal to the repayment of Revolving Loans required under Section
2.7(b)(iv) hereof; provided, however, that if there are no Loans then
outstanding, or if the Excess Cash Flow exceeds the Loans then outstanding, the
Revolving Loan Commitments shall be reduced by an aggregate amount equal to the
Excess Cash Flow, or the excess of the Excess Cash Flow over the Loans (which
reduction shall be in addition to the reduction set forth in the first part of
this Section 2.5(b)), as applicable, regardless of any repayment of the
Revolving Loans. Reductions under this Section 2.5(b) to the Revolving Loan
Commitments shall be applied to the reductions set forth in Section 2.5(a)
hereof in inverse order of the reductions set forth therein.
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(c) Reduction From Asset Sales and Insurance and Condemnation
Proceedings. At any time after the aggregate Unreinvested Net Proceeds from all
sales, transfers or other dispositions of assets of the Borrowers and their
Restricted Subsidiaries, or from any insurance or condemnation proceeding in
respect of such assets, after January 6, 2000, exceeds $10,000,000.00, the
Revolving Loan Commitments shall be automatically and permanently reduced by an
amount equal to the repayment of the Revolving Loans required under Section
2.7(b)(iii) hereof; provided, however, that if there are no Loans then
outstanding, or if the Unreinvested Net Proceeds exceeds the Loans then
outstanding, the Revolving Loan Commitments shall be reduced on a pro rata basis
by an aggregate amount equal to such Unreinvested Net Proceeds, or the excess of
such Unreinvested Net Proceeds over the Loans (which reduction shall be in
addition to the reduction set forth in the first part of this Section 2.5(c)),
as applicable, regardless of any repayment of the Revolving Loans. Reductions
under this Section 2.5(c) to the Revolving Loan Commitments shall be applied to
the reductions set forth in Section 2.5(a) hereof in inverse order of the
reductions set forth therein.
(d) Reduction From Sale of Debt Instruments. If the Leverage Ratio is
greater than 5.00 to 1.00 at any time when the Parent, any Borrower or any
Restricted Subsidiary receives any Capital Raise Proceeds, on the Business Day
following such receipt, the Revolving Loan Commitments shall be automatically
and permanently reduced by an amount equal to the repayment of Revolving Loans
required to be repaid under Section 2.7(b)(v) hereof; provided, however, that if
there are no Loans then outstanding, or if the Capital Raise Proceeds exceeds
the Loans then outstanding, the Revolving Loan Commitments shall be reduced on a
pro rata basis by an amount equal to the Capital Raise Proceeds, or the excess
of the Capital Raise Proceeds over the Loans (which reduction shall be in
addition to the reduction set forth in the first part of this Section 2.5(d)),
as applicable, regardless of any repayment of the Revolving Loans. Reductions
under this Section 2.5(d) to the Revolving Loan Commitments shall be applied to
the reductions set forth in Section 2.5(a) hereof in inverse order of the
reductions set forth therein.
(e) Escrow Corp. Merger Reduction. On the effective date of the Escrow
Corp. Merger, the Revolving Loan Commitments shall be reduced by
$225,000,000.00, which reduction to the Revolving Loan Commitments shall be
applied to the reductions set forth in Section 2.5(a) hereof in the order of the
reductions set forth therein.
Section 2.6 Voluntary Commitment Reductions. The Borrowers shall have the
right, at any time and from time to time after the Agreement Date and prior to
the Maturity Date, upon at least three (3) Business Days' prior written notice
to the Administrative Agent, without premium or penalty, to cancel or reduce
permanently all or a portion of the Revolving Loan Commitments; provided,
however, that any such partial reduction shall be made in an amount not less
than $5,000,000.00 and in an integral multiple of $1,000,000.00. As of the date
of cancellation or reduction set forth in such notice, the Revolving Loan
Commitments shall be permanently reduced to the amount stated in such notice for
all purposes herein, and the Borrowers shall, on a joint and several basis, pay
to the Administrative Agent for the applicable Lenders the amount necessary to
reduce the principal amount of the Revolving Loans then
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outstanding under the Revolving Loan Commitments to not more than the amount of
Revolving Loan Commitments as so reduced, together with accrued interest on the
amount so prepaid and commitment fees accrued through the date of the reduction
with respect to the amount reduced. Commitment reductions made pursuant to this
Section 2.6 shall be applied, with respect to the Revolving Loan Commitments,
pro rata to the reductions in Section 2.5(a) hereof.
Section 2.7 Prepayments and Repayments.
(a) Prepayment. The principal amount of any Base Rate Advance may be
prepaid in full or ratably in part at any time, without premium or penalty and
without regard to the Payment Date for such Advance. LIBOR Advances may be
prepaid prior to the applicable Payment Date, upon three (3) Business Days'
prior written notice, or telephonic notice followed immediately by written
notice, to the Administrative Agent; provided, however, that the Borrowers
shall, jointly and severally, reimburse the applicable Lenders, on the earlier
of demand by the applicable Lender or the Maturity Date, for any loss or
out-of-pocket expense incurred by any such Lender in connection with such
prepayment, as set forth in Section 2.10 hereof; and provided further, however,
that the Borrowers' failure to confirm any telephonic notice with a written
notice shall not invalidate any notice so given if acted upon by the
Administrative Agent. Any prepayment hereunder shall be in amounts of not less
than $5,000,000.00 and in an integral multiple of $1,000,000.00. Amounts prepaid
pursuant to this Section 2.7(a) may, with respect to the Revolving Loans, be
reborrowed, subject to the terms and conditions hereof, and shall be applied,
with respect to the Term Loan A Loans and Term Loan B Loans, pro rata to the
repayments in Section 2.7(b)(i) hereof. Amounts prepaid shall be paid together
with accrued interest on the amount so prepaid and commitment fees accrued
through the date of the reduction with respect to the amount reduced.
(b) Repayments. The Borrowers shall repay the Loans, on a joint and
several basis, as follows:
(i) Scheduled Repayments of the Term Loan A Loans and Term Loan B
Loans. Commencing March 31, 2003, and on the last day of each calendar
quarter ending during the periods set forth below, the principal balance of
the Term Loan A Loans and Term Loan B Loans outstanding shall be repaid
until paid in full by the dollar amounts set forth below:
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Principal Payment of Principal Payment of
Term Loan A Loans Term Loan B Loans
Due on Each Due on Each
Repayment Dates Repayment Date Repayment Date
---------------------------------------- -------------------- --------------------
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 $12,545,913.68 $ 1,229,991.51
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 $46,001,683.47 $ 1,229,991.51
March 31, 2005, June 30, 2005,
September 30, 2005 and December 31, 2005 $58,547,597.15 $ 1,229,991.51
March 31, 2006, June 30, 2006,
September 30, 2006 and December 31, 2006 $61,684,075.57 $ 1,229,991.51
March 31, 2007 and June 30, 2007 $60,638,582.76 $ 1,229,991.51
September 30, 2007 and December 31, 2007 Not applicable $234,928,377.86
(ii) Revolving Loans and Letter of Credit Obligations in Excess
of Revolving Loan Commitments. If, at any time, the amount of the Revolving
Loans and Letter of Credit Obligations shall exceed the Revolving Loan
Commitments, the Borrowers shall, on such date and subject to Section 2.10
hereof, make a repayment of the principal amount of the Revolving Loans,
or, if there are no such Loans then outstanding, establish, if applicable,
a Letter of Credit Reserve Account, in each case, in an amount equal to
such excess, together with any accrued interest and fees with respect
thereto.
(iii) Unreinvested Net Proceeds from Asset Sales and Insurance
and Condemnation Proceedings. At any time after the aggregate Unreinvested
Net Proceeds from all sales, transfers or other dispositions of assets of
the Borrowers and their Restricted Subsidiaries or from any insurance or
condemnation proceeding in respect of such assets after January 6, 2000
exceeds $10,000,000.00, the Loans shall be repaid in an amount equal to, in
the aggregate, such Unreinvested Net Proceeds. The amount of the
Unreinvested Net Proceeds required to be repaid under this Section
2.7(b)(iii) shall be applied to the Loans then outstanding on a pro rata
basis. Accrued interest on the principal amount of the Loans being repaid
pursuant to this Section 2.7(b)(iii) to the date of such repayment will be
paid by the Borrowers concurrently with such principal repayment. All
repayments under this Section 2.7(b)(iii) of each of the Term Loan A Loans
and the Term Loan B Loans shall be applied to the repayments for such Loan
in Section 2.7(b)(i) hereof in inverse order of maturity.
(iv) Excess Cash Flow. On or prior to April 15, 2004 and on or
prior to each April 15th thereafter during the term of this Agreement, the
Loans shall be repaid in an amount equal to, in the aggregate, fifty
percent (50%) of the Excess Cash Flow for the
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fiscal year ended on the immediately preceding December 31st. The amount of
the Excess Cash Flow required to be repaid under this Section 2.7(b)(iv)
shall be applied to the Loans then outstanding on a pro rata basis. Accrued
interest on the principal amount of the Loans being repaid pursuant to this
Section 2.7(b)(iv) to the date of such repayment will be paid by the
Borrowers concurrently with such principal repayment. All repayments under
this Section 2.7(b)(iv) of each of the Term Loan A Loans and the Term Loan
B Loans shall be applied to the repayments for such Loans in Section
2.7(b)(i) hereof in inverse order of maturity.
(v) Sale of Debt Instruments. If the Leverage Ratio is greater
than 5.00 to 1.00 at any time when the Parent, any Borrower or any
Restricted Subsidiary receives any Capital Raise Proceeds, on the Business
Day following such receipt, the Loans shall be repaid in an amount equal to
such Capital Raise Proceeds. The amount of the Capital Raise Proceeds
required to be repaid under this Section 2.7(b)(v) shall be applied to the
Loans then outstanding on a pro rata basis. Accrued interest on the
principal amount of the Loans being prepaid pursuant to this Section
2.7(b)(v) to the date of such prepayment will be paid by the Borrowers
concurrently with such principal prepayment. All repayments under this
Section 2.7(b)(v) of each of the Term Loan A Loans and the Term Loan B
Loans shall be applied to the repayments for such Loans in Section
2.7(b)(i) hereof in inverse order of maturity.
(vi) Proceeds of 2003 Senior Subordinated Discount Notes.
(A) Initial Repayment. Notwithstanding anything to the contrary
in Section 2.7(a) hereof, on or prior to the Business Day following
the date of the Escrow Corp. Merger, the Borrowers shall prepay the
Term Loan A Loans and Term Loan B Loans in the amount of
$200,000,000.00 which will be applied on the following basis to the
outstanding Loans: (x) $125,000,000.00 shall be applied to the Term
Loan A Loans as follows: (1) $60,000,000.00 shall be applied on a pro
rata basis to the scheduled repayments of the Term Loan A Loans set
forth in Section 2.7(b)(i) hereof for the fiscal year ending December
31, 2004; (2) $45,000,000.00 shall be applied on a pro rata basis to
the scheduled repayments for the Term Loan A Loans set forth in
Section 2.7(b)(i) hereof for the fiscal year ending December 31, 2005;
and (3) $20,000,000.00 shall be applied on a pro rata basis for the
scheduled repayments of the Term Loan A Loans set forth in Section
2.7(b)(i) hereof for the fiscal year ending December 31, 2006, and (y)
$75,000,000.00 shall be applied on a pro rata basis to the scheduled
repayments for the Term Loan B Loans set forth in Section 2.7(b)(i)
hereof. For the avoidance of doubt, the provisions of Sections 2.5(d)
and 2.7(b)(v) hereof shall not apply with respect to any proceeds of
the 2003 Senior Subordinated Discount Notes.
(B) Subsequent Repayment. In addition to the repayments set forth
in Section 2.7(b)(vi)(A) above, on July 1, 2004, the Borrowers shall
repay
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the Term Loan A Loans and Term Loan B Loans then outstanding in an
amount equal to the amount in the Proceeds Account on such date, which
repayment shall be applied pro rata to the Term Loan A Loans and the
Term Loan B Loans across the remaining scheduled repayments set forth
in Section 2.7(b)(i) hereof.
(vii) Revolving Loan Maturity Date. In addition to the foregoing,
a final payment of all Revolving Loans, together with accrued interest and
fees with respect thereto, shall be due and payable on the Revolving Loan
Maturity Date.
(viii) Term Loan A Maturity Date. In addition to the foregoing, a
final payment of the Term Loan A Loans, together with accrued interest and
fees with respect thereto, shall be due and payable on the Term Loan A
Maturity Date.
(ix) Term Loan B Maturity Date. In addition to the foregoing, a
final payment of Term Loan B Loans, together with accrued interest and fees
with respect thereto and all other Obligations then outstanding shall be
due and payable on the Term Loan B Maturity Date.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein and shall be evidenced by the Notes. One (1)
Revolving Loan Note, one (1) Term Loan A Note, and one (1) Term Loan B Note
shall be payable to the order of each applicable Lender in accordance with such
Lender's applicable Commitment Ratio for Revolving Loans, the Term Loan A Loans,
and the Term Loan B Loans. The Notes shall be issued on a joint and several
basis by the Borrowers to the Lenders and shall be duly executed and delivered
by one or more Authorized Signatories. Any Lender (i) which is not a U.S. Person
(a "Non-U.S. Bank") and (ii) which could become completely exempt from
withholding of United States federal income taxes in respect of payment of any
obligations due to such Lender hereunder relating to any of its Loans if such
Loans were in registered form for United States federal income tax purposes may
request the Borrowers (through the Administrative Agent), and the Borrowers
agree thereupon, to register such Loans as provided in Section 11.5(g) hereof
and to issue to such Lender Notes evidencing such Loans as Registered Notes or
to exchange Notes evidencing such Loans for new Registered Notes, as applicable.
Registered Notes may not be exchanged for Notes that are not in registered form.
(b) Each Lender may open and maintain on its books in the name of the
Borrowers a loan account with respect to its portion of the Loans and interest
thereon. Each Lender which opens such a loan account shall debit such loan
account for the principal amount of its portion of each Advance made by it and
accrued interest thereon, and shall credit such loan account for each payment on
account of principal of or interest on its Loans. The records of a Lender with
respect to the loan account maintained by it shall be prima facie evidence of
its portion of the Loans and accrued interest thereon absent manifest error, but
the failure of any
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Lender to make any such notations or any error or mistake in such notations
shall not affect the Borrowers' repayment obligations with respect to such
Loans.
Section 2.9 Manner of Payment.
(a) Each payment (including, without limitation, any prepayment) by
the Borrowers on account of the principal of or interest on the Loans,
commitment fees and any other amount owed to the Lenders or the Administrative
Agent or any of them under this Agreement or the Notes shall be made not later
than 1:00 p.m. (New York, New York time) on the date specified for payment under
this Agreement to the Administrative Agent at the Administrative Agent's Office,
for the account of the Lenders or the Administrative Agent, as the case may be,
in lawful money of the United States of America in immediately available funds.
Any payment received by the Administrative Agent after 1:00 p.m. (New York, New
York time) shall be deemed received on the next Business Day. Receipt by the
Administrative Agent of any payment intended for any Lender or Lenders hereunder
prior to 1:00 p.m. (New York, New York time) on any Business Day shall be deemed
to constitute receipt by such Lender or Lenders on such Business Day. In the
case of a payment for the account of a Lender, the Administrative Agent will
promptly, but no later than the close of business on the date such payment is
deemed received, thereafter distribute the amount so received in like funds to
such Lender. If the Administrative Agent shall not have received any payment
from the Borrowers as and when due, the Administrative Agent will promptly
notify the applicable Lenders accordingly. In the event that the Administrative
Agent shall fail to make distribution to any Lender as required under this
Section 2.9, the Administrative Agent agrees to pay such Lender interest from
the date such payment was due until paid at the Federal Funds Rate.
(b) The Borrowers agree to pay, on a joint and several basis,
principal, interest, fees and all other amounts due hereunder or under the Notes
without set-off or counterclaim or any deduction whatsoever.
(c) Prior to the acceleration of the Loans under Section 8.2 hereof,
if some but less than all amounts due from the Borrowers are received by the
Administrative Agent with respect to the Obligations, the Administrative Agent
shall distribute such amounts in the following order of priority, all on a pro
rata basis to the Lenders: (i) to the payment on a pro rata basis of any fees or
expenses then due and payable to the Administrative Agent and the Issuing Bank,
or any of them or expenses then due and payable to the Lenders; (ii) to the
payment of interest then due and payable on the Loans on a pro rata basis and of
fees then due and payable to the Lenders on a pro rata basis; (iii) to the
payment of all other amounts not otherwise referred to in this Section 2.9(c)
then due and payable to the Administrative Agent, the Issuing Bank and the
Lenders, or any of them, hereunder or under the Notes or any other Loan
Document; and (iv) to the payment of principal then due and payable on the Loans
on a pro rata basis.
(d) Subject to any contrary provisions in the definition of Interest
Period, if any payment under this Agreement or any of the other Loan Documents
is specified to be made on a day which is not a Business Day, it shall be made
on the next Business Day, and such
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extension of time shall in such case be included in computing interest and fees,
if any, in connection with such payment.
(e) Each Registered Noteholder (or, if such Registered Noteholder is
not the beneficial owner thereof, such beneficial owner) shall deliver to the
Borrowers (with a copy to the Administrative Agent) prior to or at the time it
becomes a Registered Noteholder, an Internal Revenue Service Form W-8BEN or
W-8ECI (or such successor and related forms as may from time to time be adopted
by the relevant taxing authorities of the United States of America), together
with an annual certificate stating that such Registered Noteholder or beneficial
owner, as the case may be, is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and is not otherwise described in Section 881(c)(3) of
the Code. Each Registered Noteholder or beneficial owner, as the case may be,
shall promptly notify the Borrowers (with a copy to the Administrative Agent) if
at any time, such Registered Noteholder or beneficial owner, as the case may be,
determines that it is no longer in a position to make the certification made in
such certificate to the Borrowers (or any other form of certification adopted by
the relevant taxing authorities of the United States of America for such
purposes).
Section 2.10 Reimbursement.
(a) Whenever any Lender shall sustain or incur any losses or
reasonable out-of-pocket expenses in connection with (i) the failure by a
Borrower to borrow, Continue or Convert any LIBOR Advance after having given
notice of its intention to borrow, Continue or Convert such Advance in
accordance with Section 2.2 hereof (whether by reason of such Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3 hereof), or (ii) the prepayment (or failure to prepay after
giving notice thereof) of any LIBOR Advance in whole or in part for any reason,
the Borrowers agree to pay, on a joint and several basis, to such Lender, upon
such Lender's demand, an amount sufficient to compensate such Lender for all
such losses and out-of-pocket expenses. Such Lender's good faith determination
of the amount of such losses or out-of-pocket expenses, as set forth in writing
and accompanied by calculations in reasonable detail demonstrating the basis for
its demand, shall be presumptively correct absent manifest error.
(b) Losses subject to reimbursement hereunder shall include, without
limiting the generality of the foregoing, lost margins, expenses incurred by any
Lender or any participant of such Lender permitted hereunder in connection with
the re-employment of funds prepaid, paid, repaid, not borrowed, or not paid, as
the case may be, and will be payable whether the applicable Maturity Date is
changed by virtue of an amendment hereto (unless such amendment expressly waives
such payment) or as a result of acceleration of the Loans.
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance under the Revolving Loan Commitments from
the Lenders hereunder shall be made pro rata on the basis of the applicable
Commitment Ratios of the Lenders having a Revolving Loan Commitment.
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(b) Payments. Each payment and prepayment of principal of the Loans,
and, except as provided in Section 2.2(e) hereof and Article 10 hereof, each
payment of interest on the Loans, shall be made to the Lenders pro rata on the
basis of their respective unpaid principal amounts outstanding under the
applicable Loans immediately prior to such payment or prepayment. If any Lender
shall obtain any payment (whether involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Loans in excess of its ratable share
of the Loans under its applicable Commitment Ratio, such Lender shall forthwith
purchase from the other Lenders such participations in the portion of the
applicable Loans made by them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and
each such other Lender shall repay to the purchasing Lender the purchase price
to the extent of such recovery. The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section 2.11(b)
may, to the fullest extent permitted by law, exercise all its rights of payment
(including, without limitation, the right of set-off) with respect to such
participation as fully as if such purchasing Lender were the direct creditor of
the Borrowers in the amount of such participation.
(c) Commitment Reductions. Any reduction of the Revolving Loan
Commitments required or permitted hereunder shall reduce the Revolving Loan
Commitment of each Lender having such a commitment on a pro rata basis based on
the Commitment Ratio of such Lender for such commitment.
Section 2.12 Capital Adequacy. If after the date hereof, the adoption of
any Applicable Law regarding the capital adequacy of banks or bank holding
companies, or any change in Applicable Law (whether adopted before or after the
Agreement Date) or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender (or the
bank holding company of such Lender) with any directive regarding capital
adequacy (whether or not having the force of law) of any such governmental
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on any Lender's capital as a consequence of its
obligations hereunder with respect to the Loans and the Commitments to a level
below that which it could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy immediately before such adoption, change or compliance and
assuming that such Lender's (or the bank holding company of such Lender) capital
was fully utilized prior to such adoption, change or compliance) by an amount
reasonably deemed by such Lender to be material, then, upon demand by such
Lender, the Borrowers shall promptly pay, on a joint and several basis, to such
Lender such additional amounts as shall be sufficient to compensate such Lender
(on an after-tax basis) for such reduced return, together with interest on such
amount from the fourth (4th) Business Day after the date of demand or the
applicable Maturity Date, as applicable, until payment in full thereof at the
Default Rate. A certificate of such Lender setting forth the amount to be paid
to such Lender by the Borrowers as a result of any event referred to in this
paragraph
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and supporting calculations in reasonable detail shall be presumptively correct
absent manifest error.
Section 2.13 Lender Tax Forms. On or prior to the Agreement Date and, to
the extent permitted by applicable U.S. Federal law, on or prior to the first
Business Day of each calendar year thereafter, each Lender which is organized in
a jurisdiction other than the United States shall provide each of the
Administrative Agent and the Borrowers (a) if such Lender is a "bank" under
Section 881(c)(3)(A) of the Code, with a properly executed original of Internal
Revenue Service Form W-8BEN or W-8ECI (or any successor form) prescribed by the
Internal Revenue Service or other documents satisfactory to the Borrowers and
the Administrative Agent, or with a properly executed Internal Revenue Service
Form W-9, as the case may be, certifying (i) as to such Lender's status for
purposes of determining exemption from United States withholding taxes with
respect to all payments to be made to such Lender hereunder and under the Notes
or (ii) that all payments to be made to such Lender hereunder and under the
Notes are subject to such taxes at a rate reduced to zero by an applicable tax
treaty, or (b) if such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and intends to claim exemption from U.S. Federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a Form W-8BEN, or any subsequent versions
thereof or successors thereto (and, if such Lender delivers a Form W-8BEN, a
certificate representing that such Lender is not a bank for purposes of Section
881(c) of the Code, is not a ten-percent (10%) shareholder (within the meaning
of Section 871(h)(3)(B) of the Code and is not a controlled foreign corporation
related to the Borrowers (within the meaning of Section 864(d)(4) of the Code)),
properly completed and duly executed by such Lender, indicating that such Lender
is entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes as permitted by the Code.
To the extent permitted by applicable U.S. Federal law, each such Lender agrees
to provide the Administrative Agent and the Borrowers with new forms prescribed
by the Internal Revenue Service upon the expiration or obsolescence of any
previously delivered form, or after the occurrence of any event requiring a
change in the most recent forms delivered by it to the Administrative Agent and
the Borrowers.
Section 2.14 Letters of Credit.
(a) Subject to the terms and conditions hereof, the Issuing Bank, on
behalf of the Lenders having a Revolving Loan Commitment, and in reliance on the
agreements of such Lenders set forth in Section 2.14(d) hereof, hereby agrees to
issue one or more Letters of Credit up to an aggregate face amount equal to the
Available Letter of Credit Commitment determined immediately prior to giving
effect to the issuance thereof; provided, however, that the Issuing Bank shall
not issue any Letter of Credit (i) unless the conditions precedent to the
issuance thereof set forth in Section 3.3 hereof have been satisfied, (ii) if
any Default then exists or would be caused thereby, (iii) if, after giving
effect to such issuance, the Available Revolving Loan Commitment would be less
than zero or (iv) within thirty (30) days preceding the Maturity Date; and
provided further, however, that at no time shall the aggregate amount of the
Letter of Credit Obligations outstanding hereunder exceed $50,000,000.00. Each
Letter of Credit shall (A) be payable at sight, (B) be denominated in United
States dollars, (C) expire, (i) with respect to
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Standby Letters of Credit, no later than the earlier to occur of (x) the fifth
Business Day preceding the Revolving Loan Maturity Date and (y) 360 days after
its date of issuance (but may contain provisions for automatic renewal provided
that no Default or Event of Default exists on the renewal date or would be
caused by such renewal), and (ii) with respect to Commercial Letters of Credit,
no later than the earlier to occur of (x) the thirtieth day preceding the
Revolving Loan Maturity Date and (y) 180 days after its date of Issuance (but
may contain provisions for automatic renewal provided that no Default or Event
of Default exists on the renewal date or would be caused by such renewal). Each
Letter of Credit shall be subject to the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500 and, to the extent not inconsistent therewith, the laws of
the State of New York. The Issuing Bank shall not at any time be obligated to
issue, or cause to be issued, any Letter of Credit if such issuance would
conflict with, or cause the Issuing Bank to exceed any limits imposed by, any
Applicable Law. If a Letter of Credit provides that it is automatically
renewable unless notice is given by the Issuing Bank that it will not be
renewed, the Issuing Bank shall not be bound to give a notice of non-renewal
unless directed to do so by Lenders having in the aggregate at least fifty-one
percent (51%) of the Revolving Loan Commitment at least sixty-five (65) days
prior to the then scheduled expiration date of such Letter of Credit.
(b) Any Borrower may from time to time request the Issuing Bank to
issue Letters of Credit. The Borrower shall execute and deliver to the
Administrative Agent and the Issuing Bank a Request for Issuance of Letter of
Credit for each Letter of Credit to be issued by the Issuing Bank not later than
12:00 noon (New York, New York time) on the fifth (5th) Business Day preceding
the date on which the requested Letter of Credit requested is to be issued, or
such shorter notice as may be acceptable to the Issuing Bank and the
Administrative Agent. Upon receipt of any such Request for Issuance of Letter of
Credit, subject to satisfaction of all conditions precedent thereto as set forth
in Section 3.3 hereof, the Issuing Bank shall process such Request for Issuance
of Letter of Credit and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby. The Issuing Bank shall furnish a copy of such Letter of Credit (or any
amendment thereto or renewal or extension thereof) to the Borrowers, the
Administrative Agent and each of the Lenders following the issuance thereof. The
Borrower shall pay or reimburse the Issuing Bank for normal and customary costs
and expenses incurred by the Issuing Bank in issuing, effecting payment under,
amending or otherwise administering the Letters of Credit.
(c) At such time as the Administrative Agent shall be notified by the
Issuing Bank that the beneficiary under any Letter of Credit has drawn on the
same, the Administrative Agent shall promptly notify the Borrowers and each
Lender having a Revolving Loan Commitment, by telephonic notice, followed
promptly by written notice, of the amount of the draw and, in the case of each
such Lender, such Lender's portion of such draw amount as calculated in
accordance with its respective Commitment Ratio under the Revolving Loan
Commitment.
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(d) The Borrowers hereby agree to immediately reimburse the Issuing
Bank for amounts paid by the Issuing Bank in respect of draws under a Letter of
Credit issued at a Borrower's request. In order to facilitate such repayment,
the Borrowers hereby irrevocably request the Lenders having a Revolving Loan
Commitment, and such Lenders hereby severally agree, on the terms and conditions
of this Agreement (other than as provided in Article 2 hereof with respect to
the amounts of, the timing of requests for, and the repayment of Advances
hereunder and in Article 3 hereof with respect to conditions precedent to
Advances hereunder), with respect to any honoring of any draw under a Letter of
Credit prior to the occurrence of an Event of Default under Section 8.1(f) or
(g) hereof, to make an Advance (which Advance may be a LIBOR Advance if the
Borrowers so request in a timely manner or may be Converted to a LIBOR Advance
as provided in the Loan Agreement) to the Borrowers on each day on which the
Issuing Bank honors a draw is made under any Letter of Credit and in the amount
of such draw, and to pay the proceeds of such Advance directly to the Issuing
Bank to reimburse the Issuing Bank for the amount paid by it upon such draw.
Each Lender having a Revolving Loan Commitment shall pay its share of such
Advance by paying its portion of such Advance to the Administrative Agent in
accordance with Section 2.2(e) hereof and its respective Commitment Ratio under
the Revolving Loan Commitments, without reduction for any set-off or
counterclaim of any nature whatsoever and regardless of whether any Default or
Event of Default (other than with respect to an Event of Default under Section
8.1(f) or (g) hereof) then exists or would be caused thereby. If at any time
that any Letters of Credit are outstanding, any of the events described in
clauses of Section 8.1(f) or (g) hereof shall have occurred and be continuing,
then each Lender having a Revolving Loan Commitment shall, automatically upon
the occurrence of any such event and without any action on the part of the
Issuing Bank, the Borrowers, the Administrative Agent or such Lenders, be deemed
to have purchased an undivided participation in the face amount of all Letters
of Credit then outstanding in an amount equal to such Lender's respective
Commitment Ratio under the Revolving Loan Commitments, and each Lender having a
Revolving Loan Commitment shall, notwithstanding such Event of Default, upon a
drawing being honored under any Letter of Credit, immediately pay to the
Administrative Agent for the account of the Issuing Bank, in immediately
available funds, the amount of such Lender's participation (and the Issuing Bank
shall deliver to such Lender a loan participation certificate dated the date of
the occurrence of such event and in the amount of such Lender's respective
Commitment Ratio under the Revolving Loan Commitments). The disbursement of
funds in connection with a draw under a Letter of Credit pursuant to this
Section 2.14(d) shall be subject to the terms and conditions of Section 2.2(e)
hereof. The obligation of each Lender having a Revolving Loan Commitment to make
payments to the Administrative Agent, for the account of the Issuing Bank, in
accordance with this Section 2.14 shall be absolute and unconditional and no
such Lender shall be relieved of its obligations to make such payments by reason
of noncompliance by any other Person with the terms of the Letter of Credit or
for any other reason. The Administrative Agent shall promptly remit to the
Issuing Bank the amounts so received from the other Lenders. Any overdue amounts
payable by the Lenders having a Revolving Loan Commitment to the Issuing Bank in
respect of a draw under any Letter of Credit shall bear interest, payable on
demand, at the rate on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day by the Federal Reserve Bank of New York.
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(e) The Borrowers agree that any action taken or omitted to be taken
by the Issuing Bank in connection with any Letter of Credit, except for such
actions or omissions as shall constitute gross negligence or willful misconduct
on the part of the Issuing Bank, shall be binding on the Borrowers as between
the Borrowers and the Issuing Bank, and shall not result in any liability of the
Issuing Bank to the Borrowers. The obligation of the Borrowers to reimburse the
Lenders for Advances made to reimburse the Issuing Bank for draws under the
Letter of Credit shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, including, without limitation, the following
circumstances:
(i) any lack of validity or enforceability of any Loan Document;
(ii) any amendment or waiver of or consent to any departure from
any or all of the Loan Documents;
(iii) any improper use which may be made of any Letter of Credit
or any improper acts or omissions of any beneficiary or transferee of any
Letter of Credit in connection therewith;
(iv) the existence of any claim, set-off, defense or any right
which the Borrowers may have at any time against any beneficiary or any
transferee of any Letter of Credit (or Persons for whom any such
beneficiary or any such transferee may be acting) or any Lender (other than
the defense of payment to such Lender in accordance with the terms of this
Agreement) or any other Person, whether in connection with any Letter of
Credit, any transaction contemplated by any Letter of Credit, this
Agreement, any other Loan Document, or any unrelated transaction;
(v) any statement or any other documents presented under any
Letter of Credit proving to be insufficient, forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect whatsoever, provided that the same shall not have resulted from
gross negligence or willful misconduct of the Issuing Bank;
(vi) the insolvency of any Person issuing any documents in
connection with any Letter of Credit;
(vii) any breach of any agreement between the Borrowers and any
beneficiary or transferee of any Letter of Credit, provided that the same
shall not have resulted from the gross negligence or willful misconduct of
the Issuing Bank;
(viii) any irregularity in the transaction with respect to which
any Letter of Credit is issued, including any fraud by the beneficiary or
any transferee of such Letter
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of Credit, provided that the same shall not have resulted from the gross
negligence or willful misconduct of the Issuing Bank;
(ix) any errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph,
wireless or otherwise, whether or not they are in code, provided that the
same shall not have resulted from the gross negligence or willful
misconduct of the Issuing Bank;
(x) any act, error, neglect or default, omission, insolvency or
failure of business of any of the correspondents of the Issuing Bank,
provided that the same shall not have resulted from the gross negligence or
willful misconduct of the Issuing Bank;
(xi) any other circumstances arising from causes beyond the
control of the Issuing Bank;
(xii) payment by the Issuing Bank under any Letter of Credit
against presentation of a sight draft or a certificate which does not
comply with the terms of such Letter of Credit, provided that the same
shall not have resulted from gross negligence or willful misconduct of the
Issuing Bank; and
(xiii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, provided that the same shall not have
resulted from the result of gross negligence or willful misconduct of the
Issuing Bank or any other Lender.
(f) If any change in Applicable Law, any change in the interpretation
or administration thereof, or any change in compliance with Applicable Law by
the Issuing Bank or any Lender having a Revolving Loan Commitment as a result of
any official request or directive of any governmental authority, central bank or
comparable agency (whether or not having the force of law) shall (i) impose,
modify or deem applicable any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System), special
deposit, capital adequacy, assessment or other requirements or conditions
against Letters of Credit issued by the Issuing Bank or against participations
by any other Lender in the Letters of Credit or (ii) impose on the Issuing Bank
or any other Lender any other condition regarding any Letter of Credit or any
participation therein, and the result of any of the foregoing in the reasonable
determination of the Issuing Bank or such Lender, as the case may be, is to
increase the cost to the Issuing Bank or such Lender of issuing or maintaining
any Letter of Credit or purchasing or maintaining any participation therein, as
the case may be, by an amount (which amount shall be reasonably determined)
deemed by the Issuing Bank or such Lender to be material, and the designation of
a different lending office will not avoid the need for additional compensation
(without creating other unreimbursed costs or disadvantage to such Lender),
then, on request by the Issuing Bank or such Lender, the Borrower shall pay,
within ten (10) days after demand, the Issuing Bank or such Lender, as the case
may be, such additional amount or amounts as the Issuing Bank or such Lender, as
the case may be, so determines will compensate it on an after-tax basis for such
increased costs. A certificate of the Issuing Bank or such Lender
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setting forth the amount, and in reasonable detail the basis for the Issuing
Bank or such Lender's determination of such amount, to be paid to the Issuing
Bank or such Lender by the Borrower as a result of any event referred to in this
paragraph shall, absent manifest error, be conclusive.
(g) Each Lender having a Revolving Loan Commitment shall be
responsible for its pro rata share (based on such Lender's respective Commitment
Ratio under the Revolving Loan Commitments) of any and all reasonable
out-of-pocket costs, expenses (including reasonable legal fees) and
disbursements which may be incurred or made by the Issuing Bank in connection
with the collection of any amounts due under, the administration of, or the
presentation or enforcement of any rights conferred by any Letter of Credit, the
Borrowers' or any guarantor's obligations to reimburse or otherwise. In the
event the Borrowers shall fail to pay such expenses of the Issuing Bank within
ten (10) days after demand for payment by the Issuing Bank, each Lender having a
Revolving Loan Commitment shall thereupon pay to the Issuing Bank its pro rata
share (based on such Lender's respective Commitment Ratio under the Revolving
Loan Commitments) of such expenses within five (5) days from the date of the
Issuing Bank's notice to the Lenders having a Revolving Loan Commitment of the
Borrowers' failure to pay; provided, however, that if the Borrowers or any
guarantor shall thereafter pay such expense, the Issuing Bank will repay to each
Lender having a Revolving Loan Commitment the amounts received from such Lender
hereunder.
(h) The Borrowers agree that each Advance by the Lenders having
Revolving Loan Commitments to reimburse the Issuing Bank for draws under any
Letter of Credit, shall, for all purposes hereunder, be deemed to be an Advance
under the Revolving Loan Commitment to the Borrowers and shall be payable and
bear interest in accordance with all other Revolving Loans to the Borrowers.
(i) The Borrowers will indemnify and hold harmless the Administrative
Agent, the Issuing Bank and each Lender and each of the foregoing Person's
respective employees, representatives, officers and directors from and against
any and all claims, liabilities, obligations, losses (other than loss of
profits), damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever (including reasonable attorneys'
fees, but excluding taxes) which may be imposed on, incurred by or asserted
against the Administrative Agent, the Issuing Bank or any such other Lender in
any way relating to or arising out of the issuance of a Letter of Credit, except
that the Borrowers shall not be liable to the Administrative Agent, the Issuing
Bank or any such Lender for any portion of such claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Person seeking indemnification as determined by a
non-appealable judicial order. This Section 2.14(i) shall survive termination of
this Agreement.
ARTICLE 3 Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of this Agreement.
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(a) The effectiveness of this Agreement (excluding Sections 7.7(c),
7.7(d), 7.8 and 7.15 hereof) is subject to the prior or contemporaneous receipt
by the Administrative Agent and the Lenders of each of the following, each of
which shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders:
(i) this Agreement duly executed;
(ii) duly executed confirmation of the Security Documents signed
by each Borrower (other than AT LLC), the Parent, each Restricted
Subsidiary and the Verestar Entities;
(iii) duly executed AT LLC Assumption Agreement;
(iv) the loan certificate of AT LLC dated as of the Agreement
Date, in substantially the form attached hereto as Exhibit I, including a
certificate of incumbency with respect to each Authorized Signatory of such
Person, together with the following items: (A) a true, complete and correct
copy of the Certificate of Formation and By-laws of AT LLC as in effect on
the Agreement Date, (B) certificates of good standing for AT LLC issued by
the Secretary of State or similar state official for the state of formation
of AT LLC and for each state in which AT LLC is required to qualify to do
business, and (C) a true, complete and correct copy of the corporate
resolutions of the member of AT LLC authorizing AT LLC to execute, deliver
and perform the Loan Documents to which it is a party;
(v) an officer's certificate confirming that the Certificate of
Incorporation or Formation and the By-laws or operating or partnership
agreement, as applicable, of each of the Parent, the Borrowers and the
Restricted Subsidiaries that were previously delivered to the
Administrative Agent or delivered in connection herewith or therewith are
true, complete and correct copies of such document as in effect on the
Agreement Date;
(vi) legal opinions of Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Borrowers, and the general counsel to the Borrowers,
addressed to each Lender and the Administrative Agent and dated as of the
Agreement Date;
(vii)receipt by the Borrowers of all Necessary Authorizations,
other than Necessary Authorizations the absence of which could not
reasonably be expected to have, individually or in the aggregate, a
Materially Adverse Effect, including all necessary consents to the closing
of this Agreement, have been obtained or made, are in full force and effect
and are not subject to any pending or, to the Knowledge of the Borrowers,
threatened reversal or cancellation, and the Administrative Agent and the
Lenders shall have received a certificate of an Authorized Signatory so
stating; and
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(viii) each of the representations and warranties in Article 4
hereof are true and correct in all material respects as of the Agreement
Date, and no Default or Event of Default then exists.
(b) The effectiveness of Sections 7.7(c), 7.7(d), 7.8 and 7.15 hereof
shall be subject to, in addition to the satisfaction of the conditions precedent
set forth in Section 3.1(a) hereof, the consummation of the Escrow Corp. Merger.
Section 3.2 Conditions Precedent to Each Advance. The obligation of the
Lenders to make each Advance on or after the Agreement Date is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) all of the representations and warranties of the Borrowers under
this Agreement and the other Loan Documents (including, without limitation, all
representations and warranties with respect to the Restricted Subsidiaries),
which, pursuant to Section 4.2 hereof, are made at and as of the time of such
Advance, shall be true and correct at such time in all material respects, both
before and after giving effect to the application of the proceeds of such
Advance, and after giving effect to any updates to information provided to the
Lenders in accordance with the terms of such representations and warranties, and
no Default or Event of Default hereunder shall then exist or be caused thereby;
(b) the Administrative Agent shall have received a duly executed
Request for Advance;
(c) the incumbency of the Authorized Signatories shall be as stated in
the applicable certificate of incumbency contained in the certificates of the
Borrowers delivered to the Administrative Agent prior to or on the Agreement
Date or as subsequently modified and reflected in a certificate of incumbency
delivered to the Administrative Agent and the Lenders having a Revolving Loan
Commitment;
(d) the Administrative Agent and the Lenders having the applicable
Commitment shall have received all such other certificates, reports, statements,
opinions of counsel (if such Advance is in connection with an Acquisition) or
other documents as the Administrative Agent or any Lender having a Revolving
Loan Commitment may reasonably request;
(e) with respect to any Advance relating to any Acquisition or the
formation of any Restricted Subsidiary which is permitted hereunder, the
Administrative Agent and the Lenders having a Revolving Loan Commitment shall
have received such documents and instruments relating to such Acquisition or
formation of a new Restricted Subsidiary as are described in Section 5.13 hereof
or otherwise required herein; and
(f) with respect to any Advance, the Borrowers shall certify to the
Administrative Agent and the Lenders having a Revolving Loan Commitment that the
cash
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balance on hand as of the date of such Advance (excluding amounts which are held
in the Proceeds Account) of the Borrowers and their Subsidiaries shall not
exceed (after giving effect to application of proceeds of such Advance which
proceeds must be intended to be used within a reasonable period of time)
$50,000,000.
Section 3.3 Conditions Precedent to Issuance of Letters of Credit. The
obligation of the Issuing Bank to issue each Letter of Credit hereunder is
subject to the fulfillment of each of the following conditions immediately prior
to or contemporaneously with such issuance:
(a) all of the representations and warranties of the Borrowers under
this Agreement, which, in accordance with Section 4.2 hereof, are made at and as
of the time of an Advance, shall be true and correct in all material respects,
both before and after giving effect to the issuance of such Letter of Credit and
after giving effect to any updates to information provided to the Lenders in
accordance with the terms of such representations and warranties;
(b) the Administrative Agent shall have received a duly executed
Request for Issuance of Letter of Credit;
(c) the incumbency of the Authorized Signatories shall be as stated in
the applicable certificate of incumbency contained in the certificate of the
Borrowers delivered to the Administrative Agent prior to or on the Agreement
Date or as subsequently modified and reflected in a certificate of incumbency
delivered to the Administrative Agent and the Lenders having a Revolving Loan
Commitment;
(d) there shall not exist, on the date of the issuance of such Letter
of Credit and after giving effect thereto, a Default or an Event of Default
hereunder;
(e) the Administrative Agent, the Issuing Bank and each of the Lenders
having a Revolving Loan Commitment shall have received all such other
certificates, reports, statements, opinions of counsel (if such Letter of Credit
is in connection with an Acquisition) or other documents as any of them may
reasonably request; and
(f) with respect to any Letter of Credit issued hereunder on which any
of the Borrowers or their Restricted Subsidiaries is the named beneficiary, the
Borrowers shall certify to the Administrative Agent and the Lenders having a
Revolving Loan Commitment that the cash balance on hand as of the date of such
Letter of Credit (excluding amounts which are held in the Proceeds Account) of
the Borrowers and their Subsidiaries shall not exceed (after giving effect to
the stated amount of such Letter of Credit) $50,000,000.
ARTICLE 4 Representations and Warranties
Section 4.1 Representations and Warranties. The Borrowers hereby agree,
represent and warrant, upon the Agreement Date and on the date of each Advance,
in favor of the Administrative Agent and each Lender that:
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(a) Organization; Ownership; Power; Qualification. AT L.P. is a
limited partnership duly organized, validly existing and in good standing under
the laws of the State of Delaware, each of AT Inc., Towersites Monitoring and
ATC International is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and AT LLC is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware. Each Borrower has the power and authority to
own its properties and to carry on its business as now being and as proposed
hereafter to be conducted. Except as set forth on Schedule 3 attached hereto,
each Restricted Subsidiary is a corporation, limited liability company, limited
partnership or other legal entity duly organized or formed, validly existing and
in good standing under the laws of the state of its formation and has the power
and authority to own its properties and to carry on its business as now being
and as proposed hereafter to be conducted. The Borrowers and the Restricted
Subsidiaries are duly qualified, in good standing and authorized to do business
in each jurisdiction in which the character of their respective properties or
the nature of their respective businesses requires such qualification or
authorization, except where failure to be so qualified, in the aggregate, could
not reasonably be expected to have a Materially Adverse Effect.
(b) Authorization; Enforceability. AT L.P. has the partnership power,
each of AT Inc., Towersites Monitoring and ATC International has the corporate
power and AT LLC has the limited liability company power and each has taken all
necessary action to authorize it to borrow hereunder, to execute, deliver and
perform this Agreement and each of the other Loan Documents to which it is a
party in accordance with their respective terms, and to consummate the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Borrowers and is, and each of the other Loan
Documents to which the Borrowers are parties is, a legal, valid and binding
obligation of each Borrower and enforceable against each Borrower in accordance
with its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity.
(c) Subsidiaries: Authorization; Enforceability. The Restricted
Subsidiaries and the direct and indirect ownership thereof by AT L.P., AT Inc.,
Towersites Monitoring, ATC International and AT LLC as of the Agreement Date are
as set forth on Schedule 2 attached hereto, and, to the extent such Restricted
Subsidiaries are corporations, AT L.P., AT Inc., Towersites Monitoring, ATC
International and AT LLC, as the case may be, have, subject to the provisions of
the Security Documents, the unrestricted right to vote the issued and
outstanding shares of each directly owned Restricted Subsidiary shown thereon
and such shares of such Restricted Subsidiaries have been duly authorized and
issued and are fully paid and nonassessable. Each Restricted Subsidiary that is
a corporation has the corporate power and has taken all necessary corporate
action to authorize it to execute, deliver and perform each of the Loan
Documents to which it is a party in accordance with their respective terms and
to consummate the transactions contemplated by this Agreement and by such Loan
Documents. Each of the Loan Documents to which any Restricted Subsidiary is
party is a legal, valid and
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binding obligation of such Restricted Subsidiary enforceable against such
Restricted Subsidiary in accordance with its terms, subject, as to enforcement
of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally, and subject, as to enforceability, to general principles of
equity. The ownership interest in each of the Restricted Subsidiaries represents
a direct or indirect controlling interest by AT L.P., AT Inc., Towersites
Monitoring, ATC International and AT LLC of such Restricted Subsidiary for
purposes of directing or causing the direction of the management and policies of
each Restricted Subsidiary.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery andperformance, in accordance with their
respective terms, by the Borrowers of this Agreement and the Notes, and by the
Borrowers and the Restricted Subsidiaries of each of the other Loan Documents to
which they are respectively party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) require any consent or
approval, governmental or otherwise, not already obtained, (ii) violate any
Applicable Law respecting any Borrower or any Restricted Subsidiary, (iii)
conflict with, result in a breach of, or constitute a default under the
certificate or articles of incorporation or by-laws or partnership agreements,
as the case may be, as amended, of any Borrower or of any Restricted Subsidiary,
or under any material indenture, agreement, or other instrument, including
without limitation the Licenses, to which any Borrower or any Restricted
Subsidiary is a party or by which any of them or their respective properties may
be bound, or (iv) result in or require the creation or imposition of any Lien
upon or with respect to any property now owned or hereafter acquired by any
Borrower or any Restricted Subsidiary, except for Permitted Liens.
(e) Business. The Borrowers, together with their Subsidiaries, are
engaged in the business of owning,constructing, managing, operating, and
investing in communications tower facilities and in the video, voice and data
transmission business.
(f) Licenses, etc. The Licenses have been duly issued and are in full
force and effect. The Borrowers and the Restricted Subsidiaries are in
compliance in all material respects with all of the provisions thereof. The
Borrowers and the Restricted Subsidiaries have secured all Necessary
Authorizations, except for such Necessary Authorizations the failure of which to
secure would not reasonably be expected to have, individually or in the
aggregate, a Materially Adverse Effect, and all such Necessary Authorizations
are in full force and effect. Neither any License nor any Necessary
Authorization is the subject of any pending or, to the Knowledge of any
Borrower, threatened revocation which, if determined adversely to any Borrower
or any Restricted Subsidiary would not reasonably be expected to have,
individually or in the aggregate, a Materially Adverse Effect.
(g) Compliance with Law. The Borrowers and the Restricted Subsidiaries
are in compliance with all Applicable Law, except where the failure to be in
compliance would not individually or in the aggregate have a Materially Adverse
Effect.
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(h) Title to Assets. As of the Agreement Date, the Borrowers and the
Restricted Subsidiaries have good, legal and marketable title to, or a valid
leasehold interest in, all of their respective assets, except for such
exceptions as would not reasonably be expected to have, individually or in the
aggregate, a Materially Adverse Effect. None of the properties or assets of any
Borrower or any of the Restricted Subsidiaries is subject to any Liens, except
for Permitted Liens and related documents. Except for financing statements
evidencing Permitted Liens, no financing statement under the Uniform Commercial
Code as in effect in any jurisdiction and no other filing which names any
Borrower or any Restricted Subsidiary as debtor or which covers or purports to
cover any of the assets of any Borrower or any Restricted Subsidiary is
currently effective and on file in any state or other jurisdiction, other than
such financing statements, if any, as to which the obligations secured thereby
have been repaid in their entirety, and no Borrower nor any Restricted
Subsidiary has signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any such financing
statement or filing other than prior to the Agreement Date under the Prior Loan
Agreement and related documents.
(i) Litigation. As of the Agreement Date, there is no material action,
suit, proceeding or investigation pending against, or, to the Knowledge of the
Borrowers, threatened against or in any other manner relating adversely to, any
Borrower or any Restricted Subsidiary or any of their respective properties,
including without limitation the Licenses, in any court or before any arbitrator
of any kind or before or by any governmental body (including, without
limitation, the FCC) except as set forth on Schedule 4 attached hereto (as such
schedule may be updated from time to time). No action, suit, proceeding or
investigation (i) calls into question the validity of this Agreement or any
other Loan Document, or (ii) individually or collectively involves the
possibility of any judgment or liability not fully covered by insurance which,
if determined adversely to any Borrower or any Restricted Subsidiary, would have
a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the Borrowers
and each Restricted Subsidiary required by law to be filed have been duly filed
and all federal, state and other taxes, including, without limitation,
withholding taxes, assessments and other governmental charges or levies required
to be paid by any Borrower or any Restricted Subsidiary or imposed upon any
Borrower or any Restricted Subsidiary or any of their respective properties,
income, profits or assets, which are due and payable, have been paid, except any
such taxes (i) (x) the payment of which any Borrower or any Restricted
Subsidiary is diligently contesting in good faith by appropriate proceedings,
(y) for which adequate reserves have been provided on the books of such Person,
and (z) as to which no Lien other than a Permitted Lien has attached and no
foreclosure, distraint, sale or similar proceedings have been commenced, or (ii)
which may result from audits not yet conducted. The charges, accruals and
reserves on the books of each Borrower and each of the Restricted Subsidiaries
in respect of taxes are, in the judgment of the Borrowers, adequate.
(k) Financial Statements. The Borrowers have furnished or caused to be
furnished to the Administrative Agent and the Lenders as of the Agreement Date,
the audited
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financial statements for the Parent and its Subsidiaries on a consolidated basis
for the fiscal year ended December 31, 2001, and unaudited financial statements
for the Parent and its Subsidiaries for the fiscal quarter ended September 30,
2002, all of which have been prepared in accordance with GAAP and present fairly
in all material respects the financial position of the Borrowers and the
Restricted Subsidiaries on a consolidated basis, on and as at such dates and the
results of operations for the periods then ended (subject, in the case of
unaudited financial statements, to normal year-end and audit adjustments). None
of the Borrowers nor any of the Restricted Subsidiaries has any material
liabilities, contingent or otherwise, other than as disclosed in the financial
statements referred to in the preceding sentence or as set forth or referred to
in this Agreement.
(l) No Material Adverse Change. There has occurred no event since
December 31, 2001 which has or which could reasonably be expected to have a
Materially Adverse Effect.
(m) ERISA. Each Borrower and each Restricted Subsidiary and each of
their respective Plans are in compliance with ERISA and the Code, except to the
extent that the failure to so comply could not reasonably be expected to have a
Materially Adverse Effect, and none of the Borrowers nor any of their ERISA
Affiliates, including their Subsidiaries, has incurred any accumulated funding
deficiency with respect to any such Plan within the meaning of ERISA or the
Code. The Borrowers, each of their Restricted Subsidiaries, and each other ERISA
Affiliate have complied in all material respects with all requirements of ERISA.
No Borrower nor any of its Restricted Subsidiaries has made any promises of
retirement or other benefits to employees, except as set forth in the Plans, in
written agreements with such employees, or in such Person's employee handbook
and memoranda to employees. No Borrower nor any of its ERISA Affiliates,
including their Subsidiaries, has incurred any material liability to PBGC in
connection with any such Plan. The assets of each such Plan which is subject to
Title IV of ERISA are sufficient to provide the benefits under such Plan, the
payment of which PBGC would guarantee if such Plan were terminated, and such
assets are also sufficient to provide all other "benefit liabilities" (within
the meaning of Section 4001 of ERISA) due under the Plan upon termination. No
Reportable Event has occurred and is continuing with respect to any such Plan.
No Plan or trust created thereunder, or party in interest (as defined in Section
3(14) of ERISA), or any fiduciary (as defined in Section 3(21) of ERISA), has
engaged in a "prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) which would subject such Plan or any other
Plan of any Borrower or any Restricted Subsidiary, any trust created thereunder,
or any such party in interest or fiduciary, or any party dealing with any such
Plan or any such trust, to any material tax or penalty on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code. No
Borrower nor any of its ERISA Affiliates, including their Subsidiaries, is or
has been obligated to make any payment to a Multiemployer Plan.
(n) Compliance with Regulations U and X. No Borrower nor any of the
Restricted Subsidiaries is engaged principally or as one of its important
activities in the business of extending credit for the purpose of purchasing or
carrying, and no Borrower nor any
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Restricted Subsidiary owns or presently intends to acquire, any "margin stock"
as defined in Regulations U and X (12 C.F.R. Parts 221 and 224) (the
"Regulations") of the Board of Governors of the Federal Reserve System ("margin
stock"). None of the proceeds of the Loans will be used, directly or indirectly,
for the purpose of purchasing or carrying any margin stock or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of the Regulations. No
Borrower has taken, caused or authorized to be taken, and will not take any
action which might cause this Agreement or the Notes to violate any of the
Regulations or any other regulation of the Board of Governors of the Federal
Reserve System or to violate the Exchange Act, in each case as now in effect or
as the same may hereafter be in effect. If so requested by the Administrative
Agent, the Borrowers will furnish the Administrative Agent with (i) a statement
or statements in conformity with the requirements of Federal Reserve Form U-1
referred to in Regulation U of the Board of Governors of the Federal Reserve
System and (ii) other documents evidencing its compliance with the margin
regulations, reasonably requested by the Administrative Agent. Neither the
making of the Loans nor the use of proceeds thereof will violate, or be
inconsistent with, the provisions of any of the Regulations.
(o) Investment Company Act. No Borrower nor any of the Restricted
Subsidiaries is required to register under the provisions of the Investment
Company Act of 1940, as amended, and neither the entering into or performance by
the Borrowers and the Restricted Subsidiaries of this Agreement and the Loan
Documents nor the issuance of the Notes violates any provision of such Act or
requires any consent, approval or authorization of, or registration with, the
Securities and Exchange Commission or any other governmental or public body or
authority pursuant to any provisions of such Act.
(p) Governmental Regulation. No Borrower nor any of the Restricted
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the execution and delivery of this
Agreement or any other Loan Document. No Borrower nor any Restricted Subsidiary
is required to obtain any consent, approval, authorization, permit or license
which has not already been obtained from, or effect any filing or registration
which has not already been effected with, any federal, state or local regulatory
authority in connection with the performance, in accordance with their
respective terms, of this Agreement or any other Loan Document, other than
filing of appropriate Uniform Commercial Code financing statements.
(q) Absence of Default, Etc. The Borrowers and the Restricted
Subsidiaries are in compliance in all material respects with all of the
provisions of their respective partnership agreements, limited liability company
agreements, Certificates or Articles of Incorporation and By-Laws, as the case
may be, and no event has occurred or failed to occur (including, without
limitation, any matter which could create a Default hereunder by cross-default)
which has not been remedied or waived, the occurrence or non-occurrence of which
constitutes, (i) a Default or (ii) a material default by any Borrower or any
Restricted Subsidiary under any indenture,
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agreement or other instrument relating to Indebtedness of such Person in the
amount of $10,000,000.00 or more in the aggregate, any material License, or any
judgment, decree or order to which any Borrower or any Restricted Subsidiary is
a party or by which any Borrower or any Restricted Subsidiary or any of its
respective properties may be bound or affected.
(r) Accuracy and Completeness of Information. All information,
reports, prospectuses and other papers and data relating to the Borrowers or any
Restricted Subsidiary and furnished by or on behalf of the Borrowers or any
Restricted Subsidiary to the Administrative Agent or the Lenders, taken as a
whole, were, at the time furnished, true, complete and correct in all material
respects to the extent necessary to give the Administrative Agent and the
Lenders true and accurate knowledge of the subject matter, and all projections,
consisting of a statement of operating statistics, an income statement summary,
a debt repayment schedule and pro forma compliance calculations, that were
provided prior to the Agreement Date in connection with this Agreement (the
"Projections") (i) disclose all assumptions made with respect to costs, general
economic conditions, and financial and market conditions formulating the
Projections; (ii) are based on reasonable estimates and assumptions; and (iii)
reflect, as of the date prepared, and continue to reflect, as of the Agreement
Date, the reasonable estimate of the Borrowers of the results of operations and
other information projected therein for the periods covered thereby.
(s) Agreements with Affiliates. Except for agreements or arrangements
with Affiliates wherein the Borrowers or one or more of the Restricted
Subsidiaries provides services to or receives services from such Affiliates for
fair consideration or which are set forth on Schedule 5 attached hereto, no
Borrower nor any Restricted Subsidiary has (i) any written agreements or binding
arrangements of any kind with any Affiliate or (ii) any management or consulting
agreements of any kind with any Affiliate, other than (x) those among the
Borrowers, the Restricted Subsidiaries and/or the Parent, and (y) employment
arrangements with executive officers, including, without limitation, stock
option grants of the Parent.
(t) Payment of Wages. Each Borrower and each Restricted Subsidiary is
in compliance with the Fair Labor Standards Act, as amended, in all material
respects, and to the Knowledge of the Borrowers and each Restricted Subsidiary,
such Persons have paid all minimum and overtime wages required by law to be paid
to their respective employees except where the failure to do so could not
reasonably be expected to have a Materially Adverse Effect.
(u) Priority. The Security Interest is a valid and, upon filing of
appropriate Uniform Commercial Code financing statements and/or mortgages, will
be a perfected first priority security interest in the Collateral in favor of
the Administrative Agent, for the benefit of itself, the Lenders and the Issuing
Bank, securing, in accordance with the terms of the Security Documents, the
Obligations, and the Collateral is subject to no Liens other than Permitted
Liens. The Liens created by the Security Documents are enforceable as security
for the Obligations in accordance with their terms with respect to the
Collateral subject, as to enforcement of remedies, to the following
qualifications: (i) an order of specific performance and an injunction are
discretionary remedies and, in particular, may not be available where damages
are considered an
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adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of any Borrower or any of
the Restricted Subsidiaries, as the case may be).
(v) Indebtedness. Except as shown on the financial statements of the
Parent for the fiscal quarter ended September 30, 2002, or as described on
Schedule 6 attached hereto, none of the Parent, any Borrower, or any of the
Restricted Subsidiaries has outstanding, as of the Agreement Date, any
Indebtedness for Money Borrowed.
(w) Solvency. As of the Agreement Date and after giving effect to the
transactions contemplated by the Loan Documents (i) the property of the
Borrowers, at a fair valuation, will exceed their debt; (ii) the capital of the
Borrowers will not be unreasonably small to conduct their business; (iii) the
Borrowers will not have incurred debts, or have intended to incur debts, beyond
their ability to pay such debts as they mature; and (iv) the present fair
salable value of the assets of the Borrowers will be greater than the amount
that will be required to pay their probable liabilities (including debts) as
they become absolute and matured. For purposes of this Section, "debt" means any
liability on a claim, and "claim" means (i) the right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
Section 4.2 Survival of Representations and Warranties, Etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date the making of
each Advance except to the extent relating specifically to the Agreement Date.
All representations and warranties made under this Agreement and the other Loan
Documents shall survive, and not be waived by, the execution hereof by the
Lenders and the Administrative Agent, any investigation or inquiry by any Lender
or the Administrative Agent, or the making of any Advance under this Agreement.
ARTICLE 5 General Covenants
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder or the Issuing Bank has an
obligation to issue Letters of Credit hereunder (in each case, whether or not
the conditions to borrowing or issuing a Letter of Credit, as applicable, have
been or can be fulfilled), and unless the Majority Lenders, or such greater
number of Lenders as may be expressly provided herein, shall otherwise consent
in writing:
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Section 5.1 Preservation of Existence and Similar Matters. Except as
permitted under Section 7.4 hereof, the Borrowers will, and will cause each of
the Restricted Subsidiaries to:
(a) preserve and maintain its existence, and its material rights,
franchises, licenses and privileges in the state of its incorporation,
including, without limitation, the Licenses and all other Necessary
Authorizations, except where the failure to do so could not reasonably be
expected to have a Materially Adverse Effect; and
(b) qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, except for such failure
to so qualify and be so authorized as could not reasonably be expected to have a
Materially Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrowers will,
and will cause each of the Restricted Subsidiaries to, (a) engage in the
business of owning, constructing, managing, operating and investing in
communications tower facilities and related businesses and not engage in any
unrelated activities, and (b) comply in all material respects with the
requirements of all Applicable Law.
Section 5.3 Maintenance of Properties. The Borrowers will, and will cause
each of the Restricted Subsidiaries to, maintain or cause to be maintained in
the ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than obsolete equipment or
unused assets and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrowers will,
and will cause each of the Restricted Subsidiaries on a consolidated and
consolidating basis to, maintain a system of accounting established and
administered in accordance with GAAP, keep adequate records and books of account
in which complete entries will be made in accordance with GAAP and reflecting
all transactions required to be reflected by GAAP, and keep accurate and
complete records of their respective properties and assets. The Borrowers and
the Restricted Subsidiaries will maintain a fiscal year ending on December 31st.
Section 5.5 Insurance. The Borrowers will, and will cause each of the
Restricted Subsidiaries to:
(a) maintain insurance including, but not limited to, business
interruption coverage and public liability coverage insurance from responsible
companies in such amounts and against such risks to the Borrowers and each
Restricted Subsidiary as is prudent for similarly situated companies engaged in
the communications tower industry;
(b) keep their respective assets insured by insurers on terms and in a
manner reasonably acceptable to the Administrative Agent against loss or damage
by fire, theft, burglary,
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loss in transit, explosions and hazards insured against by extended coverage, in
amounts which are prudent for the communications tower management and operation
industry and reasonably satisfactory to the Administrative Agent, all premiums
thereon to be paid by the Borrowers and the Restricted Subsidiaries; and
(c) require that each insurance policy provide for at least thirty
(30) days' prior written notice to the Administrative Agent of any termination
of or proposed cancellation or nonrenewal of such policy, and name the
Administrative Agent, on behalf of itself, the Lenders and the Issuing Bank as
additional named lender loss payee and, as appropriate, additional insured, to
the extent of the Obligations.
Section 5.6 Payment of Taxes and Claims. The Borrowers will, and will cause
each Restricted Subsidiary to, pay and discharge all taxes, including, without
limitation, withholding taxes, assessments and governmental charges or levies
required to be paid by them or imposed upon them or their income or profits or
upon any properties belonging to them, prior to the date on which penalties
attach thereto, and all lawful claims for labor, materials and supplies which,
if unpaid, might become a Lien or charge upon any of their properties; provided,
however, that no such tax, assessment, charge, levy or claim need be paid which
is being diligently contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on the appropriate books, but
only so long as such tax, assessment, charge, levy or claim does not become a
Lien or charge other than a Permitted Lien and no foreclosure, distraint, sale
or similar proceedings shall have been commenced. The Borrowers will, and will
cause each Restricted Subsidiary to, timely file all information returns
required by federal, state or local tax authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrowers shall, and shall cause the Restricted Subsidiaries
to, make all contributions to any Employee Pension Plan when such contributions
are due and not incur any "accumulated funding deficiency" within the meaning of
Section 412(a) of the Code, whether or not waived, and will otherwise comply
with the requirements of the Code and ERISA with respect to the operation of all
Plans, except to the extent that the failure to so comply could not have a
Materially Adverse Effect.
(b) The Borrowers shall, and shall cause the Restricted Subsidiaries
to, comply in all respects with the requirements of ERISA with respect to any
Plans subject to the requirements thereof, except to the extent that the failure
to so comply could not have a Materially Adverse Effect.
(c) The Borrowers shall furnish to the Administrative Agent (i) within
30 days after any officer of AT Inc., ATC GP, Towersites Monitoring, ATC
International or AT LLC obtains knowledge that a "prohibited transaction"
(within the meaning of Section 406 of ERISA or Section 4975 of the Code) has
occurred with respect to any Plan of any Borrower or their ERISA Affiliates,
including the Restricted Subsidiaries, that any Reportable Event has
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occurred with respect to any Employee Pension Plan or that PBGC has instituted
or will institute proceedings under Title IV of ERISA to terminate any Employee
Pension Plan or to appoint a trustee to administer any Employee Pension Plan, a
statement setting forth the details as to such prohibited transaction,
Reportable Event or termination or appointment proceedings and the action which
it (or any other Employee Pension Plan sponsor if other than a Borrower)
proposes to take with respect thereto, together with a copy of the notice of
such Reportable Event given to PBGC if a copy of such notice is available to a
Borrower, any of the Restricted Subsidiaries or any of its ERISA Affiliates,
(ii) promptly after receipt thereof, a copy of any notice any Borrower, any of
the Restricted Subsidiaries or any of their ERISA Affiliates or the sponsor of
any Plan maintained by any Borrower, any of their Restricted Subsidiaries or any
of their ERISA Affiliates receives from PBGC or the Internal Revenue Service or
the Department of Labor which sets forth or proposes any action or determination
with respect to such Plan, (iii) promptly after the filing thereof, any annual
report required to be filed pursuant to ERISA in connection with each Plan
maintained by any Borrower or any of its ERISA Affiliates, including the
Restricted Subsidiaries, and (iv) promptly upon the Administrative Agent's
request therefor, such additional information concerning any such Plan as may be
reasonably requested by the Administrative Agent.
(d) The Borrowers shall promptly notify the Administrative Agent of
any excise taxes which have been assessed or which any Borrower, any of the
Restricted Subsidiaries or any of its ERISA Affiliates has reason to believe may
be assessed against any Borrower, any of the Restricted Subsidiaries or any of
its ERISA Affiliates by the Internal Revenue Service or the Department of Labor
with respect to any Plan of any Borrower or its ERISA Affiliates, including the
Restricted Subsidiaries.
(e) Within the time required for notice to the PBGC under Section
302(f)(4)(A) of ERISA, the Borrowers will notify the Administrative Agent of any
lien arising under Section 302(f) of ERISA in favor of any Plan of any Borrower
or its ERISA Affiliates, including the Restricted Subsidiaries.
(f) The Borrowers will not, and will not permit any of the Restricted
Subsidiaries or any of their ERISA Affiliates, to take any of the following
actions or permit any of the following events to occur if such action or event
together with all other such actions or events would subject any Borrower, any
of the Restricted Subsidiaries, or any of its ERISA Affiliates to any tax,
penalty, or other liabilities which could have a Materially Adverse Effect:
(i) engage in any transaction in connection with which any
Borrower, any of the Restricted Subsidiaries or any ERISA Affiliate could
be subject to either a civil penalty assessed pursuant to Section 502(i) of
ERISA or a tax imposed by Section 4975 of the Code;
(ii) terminate any Employee Pension Plan in a manner, or take any
other action, which could result in any liability of any Borrower, any of
the Restricted Subsidiaries or any ERISA Affiliate to the PBGC;
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(iii) fail to make full payment when due of all amounts which,
under the provisions of any Plan, any Borrower, any of the Restricted
Subsidiaries or any ERISA Affiliate is required to pay as contributions
thereto, or permit to exist any accumulated funding deficiency within the
meaning of Section 412(a) of the Code, whether or not waived, with respect
to any Employee Pension Plan; or
(iv) permit the present value of all benefit liabilities under
all Employee Pension Plans which are subject to Title IV of ERISA to exceed
the present value of the assets of such Plans allocable to such benefit
liabilities (within the meaning of Section 4001 of ERISA), except as may be
permitted under actuarial funding standards adopted in accordance with
Section 412 of the Code.
Section 5.8 Visits and Inspections. The Borrowers will, and will cause each
Restricted Subsidiary to, permit representatives of the Administrative Agent and
any of the Lenders, upon reasonable notice, to (a) visit and inspect the
properties of the Borrowers or any Restricted Subsidiary during business hours,
(b) inspect and make extracts from and copies of their respective books and
records, and (c) discuss with their respective principal officers their
respective businesses, assets, liabilities, financial positions, results of
operations and business prospects. The Borrowers and each Restricted Subsidiary
will also permit representatives of the Administrative Agent, any of the Lenders
and the Issuing Bank to discuss with their respective accountants the
businesses, assets, liabilities, financial positions, results of operations and
business prospects of such Person.
Section 5.9 Payment of Indebtedness; Loans. Subject to any provisions
herein or in any other Loan Document, the Borrowers will, and will cause each
Restricted Subsidiary to, pay any and all of their respective Indebtedness when
and as it becomes due, other than amounts diligently disputed in good faith and
for which adequate reserves have been set aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrowers will use the aggregate proceeds
of all Advances under the Loans directly or indirectly:
(a) to refinance the Indebtedness for Money Borrowed set forth on
Schedule 6 attached hereto;
(b) to fund Acquisitions and Investments (including, without
limitation, investments in Unrestricted Subsidiaries) permitted under Section
7.6 hereof;
(c) to fund Capital Expenditures; and
(d) for working capital needs and other general corporate purposes of
the Borrowers and the Restricted Subsidiaries, including, without limitation,
the fees and expenses incurred in connection with the execution and delivery of
this Agreement, and other costs
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associated with transactions contemplated by this Agreement, in each case, which
do not otherwise conflict with this Section 5.10.
No proceeds of Advances hereunder shall be used for the purpose of purchasing or
carrying, or the extension of credit for the purpose of purchasing or carrying,
any margin stock within the meaning of the Regulations.
Section 5.11 Indemnity. The Borrowers jointly and severally agree to
indemnify and hold harmless each Lender, the Administrative Agent, the Issuing
Bank and each of their respective Affiliates, employees, representatives,
shareholders, officers and directors (any of the foregoing shall be an
"Indemnitee") from and against any and all claims, liabilities, obligations,
losses, damages, actions, reasonable attorneys' fees and expenses (as such fees
and expenses are incurred), penalties, judgments, suits, costs and demands by
any party, including the costs of investigating and defending such claims,
whether or not any Borrower, any Restricted Subsidiary or the Person seeking
indemnification is the prevailing party (a) resulting from any breach or alleged
breach by any Borrower or any Restricted Subsidiary of any representation or
warranty made hereunder or under any Loan Document; or (b) otherwise arising out
of (i) the Commitments or otherwise under this Agreement, any Loan Document or
any transaction contemplated hereby or thereby, including, without limitation,
the use of the proceeds of Loans hereunder in any fashion by any Borrower or the
performance of their respective obligations under the Loan Documents by any
Borrower or any Restricted Subsidiary, (ii) allegations of any participation by
the Lender, the Administrative Agent, the Issuing Bank or any of them, in the
affairs of any Borrower or any of its Subsidiaries, or allegations that any of
them has any joint liability with any Borrower or any of its Restricted
Subsidiaries for any reason, (iii) any claims against the Lenders, the
Administrative Agent, the Issuing Bank or any of them, by any shareholder or
other investor in or lender to any Borrower or any of the Restricted
Subsidiaries, by any brokers or finders or investment advisers or investment
bankers retained by any Borrower or by any other third party, arising out of the
Commitments or otherwise under this Agreement; or (c) in connection with taxes
(not including federal or state income or franchise taxes or other taxes based
solely upon the revenues or income of such Persons), fees, and other charges
payable in connection with the Loans, or the execution, delivery, and
enforcement of this Agreement, the Security Documents, the other Loan Documents,
and any amendments thereto or waivers of any of the provisions thereof, unless
the Person seeking indemnification hereunder is determined in such case to have
acted with gross negligence or willful misconduct, in any case, by a final,
non-appealable judicial order. The obligations of the Borrowers under this
Section 5.11 are in addition to, and shall not otherwise limit, any liabilities
which any Borrower might otherwise have in connection with any warranties or
similar obligations of such Person in any other Loan Document.
Section 5.12 Interest Rate Hedging. Within forty-five (45) days after each
Advance after the Agreement Date, the Borrowers shall enter into (and shall at
all times thereafter maintain for a period of not less than two (2) years) one
or more Interest Hedge Agreements with respect to the interest obligations on
not less than fifty percent (50%) of the principal amount of the Loans
outstanding from time to time. Such Interest Hedge Agreements shall provide
interest
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rate protection in conformity with International Swap Dealers Association
standards and for an average period of at least two (2) years from the date of
such Interest Hedge Agreements or, if earlier, until the Term Loan B Maturity
Date on terms reasonably acceptable to the Administrative Agent, such terms to
include consideration of the creditworthiness of the other party to the proposed
Interest Hedge Agreement. All Obligations of the Borrowers to the Administrative
Agent or any of the Lenders (or any of their Affiliates) pursuant to any
Interest Hedge Agreement and all Liens granted to secure such Obligations shall
rank pari passu with all other Obligations and Liens securing such other
Obligations up to the then effective amount of the Commitments; and any Interest
Hedge Agreement between any Borrower and any other Person shall be unsecured.
Section 5.13 Covenants Regarding Formation of Restricted Subsidiaries and
Acquisitions; Partnership, Subsidiaries. At the time of (i) any Acquisition
permitted hereunder, (ii) the purchase by any Borrower or any of the Restricted
Subsidiaries of any interests in any Restricted Subsidiary or Unrestricted
Subsidiary, or (iii) the formation of any new Restricted Subsidiary or
Unrestricted Subsidiary which is permitted under this Agreement, the Borrowers
will, and will cause the Restricted Subsidiaries, as appropriate, to (a) provide
to the Administrative Agent an executed Subsidiary Security Agreement for any
new Restricted Subsidiary, in substantially the form of Exhibit F attached
hereto, together with appropriate Uniform Commercial Code financing statements,
as well as an executed Subsidiary Guaranty for such new Restricted Subsidiary,
in substantially the form of Exhibit D attached hereto, which shall constitute
both Security Documents and Loan Documents for purposes of this Agreement, as
well as a loan certificate for such new Restricted Subsidiary, substantially in
the form of Exhibit J attached hereto, together with appropriate attachments;
(b) pledge to the Administrative Agent all of the stock or partnership interests
(or other instruments or securities evidencing ownership) of such Restricted
Subsidiary or Unrestricted Subsidiary or Person which is acquired or formed,
beneficially owned by any Borrower or any Restricted Subsidiary, as the case may
be, as additional Collateral for the Obligations to be held by the
Administrative Agent in accordance with the terms of the Borrower Stock Pledge
Agreement or a new Subsidiary Pledge Agreement in substantially the form of
Exhibit E attached hereto, and execute and deliver to the Administrative Agent
all such documentation for such pledge as, in the reasonable opinion of the
Administrative Agent, is appropriate; and (c) with respect to any Acquisition or
Restricted Subsidiary, provide revised financial projections for the remainder
of the fiscal year and for each subsequent year until the Maturity Date which
reflect such Acquisition or formation, certified by the chief financial officer
of AT Inc., together with a statement by such Person that no Default exists or
would be caused by such Acquisition or formation, and all other documentation,
including one or more opinions of counsel, reasonably satisfactory to the
Administrative Agent which in its reasonable opinion is appropriate with respect
to such Acquisition or the formation of such Subsidiary. Notwithstanding the
foregoing, no Borrower shall be required to pledge any of the stock of or other
ownership interests for any Unrestricted Subsidiary which (x) was not formed or
created in anticipation of such Person's direct or indirect investment therein
(other than to facilitate a transaction of the nature referred to in clause (y)
following) and (y) at the time such stock or ownership interest was acquired by
such Person is subject to a restriction on any such Lien (whether such
restriction is in such Person's formation documents or otherwise), but
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shall be required to grant the Administrative Agent (for the benefit of the
Lenders) a Lien upon any right to receive distributions from such Unrestricted
Subsidiary. In addition, the Borrowers shall cause any Subsidiary of any
Borrower which becomes a "Restricted Subsidiary" under the 2003 Senior
Subordinated Discount Notes Indenture to become a Restricted Subsidiary
hereunder. Any document, agreement or instrument (other than the Projections)
executed or issued pursuant to this Section 5.13 shall be a "Loan Document" for
purposes of this Agreement.
Section 5.14 Payment of Wages. The Borrowers shall, and shall cause each
Restricted Subsidiary to, at all times comply, in all material respects, with
the material requirements of the Fair Labor Standards Act, as amended,
including, without limitation, the provisions of such Act relating to the
payment of minimum and overtime wages as the same may become due from time to
time.
Section 5.15 Further Assurances. The Borrowers will promptly cure, or cause
to be cured, defects in the creation and issuance of any of the Notes and the
execution and delivery of the Loan Documents (including, without limitation,
this Agreement), resulting from any acts or failure to act by any Borrower or
any of the Restricted Subsidiaries or any employee or officer thereof. The
Borrowers at their expense will promptly execute and deliver to the
Administrative Agent and the Lenders, or cause to be executed and delivered to
the Administrative Agent and the Lenders, all such other and further documents,
agreements, and instruments in compliance with or accomplishment of the
covenants and agreements in the Loan Documents, including this Agreement, or to
correct any omissions in the Loan Documents, or more fully to state the
obligations set out herein or in any of the Loan Documents, or to obtain any
consents, all as may be necessary or appropriate in connection therewith and as
may be reasonably requested.
Section 5.16 Proceeds Account. On or prior to the Business Day following
the effective date of the Escrow Corp. Merger, the Borrowers (or a Restricted
Subsidiary thereof) shall establish a segregated account (the "Proceeds
Account") subject to an account control agreement in favor of the Administrative
Agent in form and substance reasonably satisfactory to the Administrative Agent
into which shall be deposited an aggregate amount of $217,000,000.00, consisting
of $197,000,000.00 from the issuance of the 2003 Senior Subordinated Discount
Notes, distributions made pursuant to Section 5.17 hereof and other
contributions made directly or indirectly to the Borrowers on or prior to the
Business Day following the effective date of the Escrow Corp. Merger. Amounts on
deposit in the Proceeds Account may only be used for the purposes set forth in
Section 7.7(c) and (d) hereof. The Lenders hereby agree that the funds in the
Proceeds Account shall be invested and disbursed as set forth in that certain
Account Control Agreement dated as of the Agreement Date among the Borrowers and
the Administrative Agent. The Administrative Agent shall have no liability for
any losses relating to the moneys in the Proceeds Account or the investment of
the moneys in the Proceeds Account for any reason, including without limitation
the location of the bank holding the Proceeds Account, any failure of the bank
holding the Proceeds Account or any market loss on any investment liquidation
prior to maturity in order to permit the Borrowers to withdraw such moneys for
the purposes permitted in this Agreement, unless occasioned by the gross
negligence or willful misconduct of the Administrative Agent.
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Section 5.17 Distributions by Unrestricted Subsidiaries. The Borrowers and
their Restricted Subsidiaries shall cause each Unrestricted Subsidiary to, on or
prior to the Business Day following the effective date of the Escrow Corp.
Merger, make a cash distribution to a Borrower or a Restricted Subsidiary from
such Unrestricted Subsidiary's cash on hand to be deposited into the Proceeds
Account in an amount and to the extent necessary for the Proceeds Account to
contain an amount not less than $217,000,000.00 no later than the Business Day
following the effective date of the Escrow Corp. Merger.
ARTICLE 6 Information Covenants
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder or the Issuing Bank has an
obligation to issue Letters of Credit hereunder (in each case, whether or not
the conditions to borrowing or to issuing a Letter of Credit, as applicable,
have been or can be fulfilled) and unless the Majority Lenders shall otherwise
consent in writing, the Borrowers will furnish or cause to be furnished to each
Lender and the Administrative Agent, at their respective offices:
Section 6.1 Quarterly Financial Statements and Information Within
forty-five (45) days after the last day of each of the first three (3) quarters
of each fiscal year of the Borrowers, the balance sheets of the Borrowers on a
consolidated basis with the Restricted Subsidiaries and a consolidating basis
with their Unrestricted Subsidiaries as at the end of such quarter and as of the
end of the preceding fiscal year, and the related statements of operations and
the related statements of cash flows of the Borrowers on a consolidated basis
with the Restricted Subsidiaries and a consolidating basis with their
Unrestricted Subsidiaries for such quarter and for the elapsed portion of the
year ended with the last day of such quarter, which shall set forth in
comparative form such figures as at the end of and for such quarter and
appropriate prior period and shall be certified by the chief financial officer
of AT Inc. to have been prepared in accordance with GAAP and to present fairly
in all material respects the financial position of the Borrowers on a
consolidated basis with the Restricted Subsidiaries and a consolidating basis
with its Unrestricted Subsidiaries as at the end of such period and the results
of operations for such period, and for the elapsed portion of the year ended
with the last day of such period, subject only to normal year-end and audit
adjustments.
Section 6.2 Annual Financial Statements and Information. Within ninety (90)
days after the end of each fiscal year of the Borrowers, the audited
consolidated balance sheet of the Borrowers and the Restricted Subsidiaries (and
unaudited consolidating balance sheet of the Borrowers and the Unrestricted
Subsidiaries) as of the end of such fiscal year and the related audited
consolidated and unaudited consolidating statements of operations for such
fiscal year and for the previous fiscal year, the related audited consolidated
statements of cash flow and stockholders' equity for such fiscal year and for
the previous fiscal year, which shall be accompanied by an opinion of Deloitte &
Touche, LLP, or other independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent,
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which shall be in scope and substance reasonably satisfactory to the
Administrative Agent, together with a statement of such accountants that in
connection with their audit, nothing came to their attention that caused them to
believe that the Borrowers were not in compliance with the terms, covenants,
provisions or conditions of Sections 7.8, 7.9, 7.10, 7.11 and 7.15 hereof
insofar as they relate to accounting matters.
Section 6.3 Performance Certificates. At the time the financial statements
are furnished pursuant to Sections 6.1 and 6.2 hereof, a certificate of the
president or chief financial officer of AT Inc. as to their financial
performance, in substantially the form attached hereto as Exhibit K:
(a) setting forth as and at the end of such quarterly period or fiscal
year, as the case may be, the arithmetical calculations required to establish
(i) any adjustment to the Applicable Margins, as provided for in Section 2.3(f)
hereof, and (ii) whether or not the Borrowers were in compliance with the
requirements of Sections 7.8, 7.9, 7.10, 7.11 and 7.15 hereof;
(b) stating that, to the best of his or her knowledge, no Default has
occurred as at the end of such quarterly period or year, as the case may be, or,
if a Default has occurred, disclosing each such Default and its nature, when it
occurred, whether it is continuing and the steps being taken by the Borrowers
with respect to such Default;
(c) containing a list of all Acquisitions, Investments (other than
those made pursuant to Section 7.6(a) hereof), Restricted Payments, dispositions
of assets (other than dispositions of assets in the ordinary course of business)
and any outstanding Capitalized Lease Obligations from the date of the most
recently delivered prior Performance Certificate through the date of such
certificate together with the total amount for each of the foregoing categories;
and
(d) setting forth the amount of distributions received from
Unrestricted Subsidiaries for such period.
Section 6.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to any Borrower by its independent public accountants regarding such
Borrower, including, without limitation, any management report prepared in
connection with the annual audit referred to in Section 6.2 hereof.
(b) Promptly upon receipt thereof, copies of any material adverse
notice or report regarding any License.
(c) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the business, assets, liabilities,
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financial position, projections, results of operations or business prospects of
the Borrowers, or any of the Restricted Subsidiaries, as the Administrative
Agent or any Lender may reasonably request.
(d) Annually, certificates of insurance indicating that the
requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with copies of any new or replacement insurance policies obtained
during such year.
(e) Prior to January 31st of each year, the annual budget for the
Borrowers and the Restricted Subsidiaries, including, without limitation,
forecasts of the income statement, the balance sheet, a cash flow statement and
the capital expenditure budget for such year, on a quarter by quarter basis.
(f) Promptly after the sending thereof, copies of all statements,
reports and other information which the Parent sends to public security holders
of the Parent generally or files with the Securities and Exchange Commission or
any national securities exchange.
Section 6.5 Notice of Litigation and Other Matters. Notice specifying the
nature and status of any of the following events, promptly, but in any event not
later than fifteen (15) days after the occurrence of any of the following events
becomes known to any Borrower:
(a) the commencement of all proceedings and investigations by or
before any governmental body and all actions and proceedings in any court or
before any arbitrator against any Borrower or any Restricted Subsidiary or, to
the extent known to any Borrower, threatened against any Borrower or Restricted
Subsidiary, which could have a Materially Adverse Effect;
(b) any material adverse change with respect to the business, assets,
liabilities, financial position, results of operations or business prospects of
any Borrower and the Restricted Subsidiaries, taken as a whole, other than
changes in the ordinary course of business which have not had and would not
reasonably be expected to have a Materially Adverse Effect and other than
changes in the industry in which any Borrower or any of the Restricted
Subsidiaries operate which would not reasonably be expected to have a Materially
Adverse Effect;
(c) any material adverse amendment or change to the projections or
annual budget provided to the Lenders hereunder;
(d) any Default or the occurrence or non-occurrence of any event (i)
which constitutes, or which with the passage of time or giving of notice or both
would constitute, a default by any Borrower or any of the Restricted
Subsidiaries under any material agreement other than this Agreement and the
other Loan Documents to which any Borrower or any of the Restricted Subsidiaries
is party or by which any of their respective properties may be bound, or (ii)
which could have a Materially Adverse Effect, giving in each case a description
thereof and specifying the action proposed to be taken with respect thereto;
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(e) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) with respect to any Plan of any Borrower or any of its Subsidiaries or
the institution or threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or naming it
or the trustee of any such Plan with respect to such Plan or any action taken by
any Borrower, any of its Subsidiaries or any ERISA Affiliate of any Borrower to
withdraw or partially withdraw from any Plan or to terminate any Plan; and
(f) the occurrence of any event subsequent to the Agreement Date
which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section 4.1(m)
hereof.
ARTICLE 7 Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder or the Issuing Bank has an
obligation to issue Letters of Credit hereunder (in each case, whether or not
the conditions to borrowing or to issuing a Letter of Credit, as applicable,
have been or can be fulfilled) and unless the Majority Lenders, or such greater
number of Lenders as may be expressly provided herein, shall otherwise give
their prior consent in writing:
Section 7.1 Indebtedness of the Borrowers and the Restricted Subsidiaries.
The Borrowers shall not, and shall not permit any of the Restricted Subsidiaries
to, create, assume, incur or otherwise become or remain obligated in respect of,
or permit to be outstanding, any Indebtedness except:
(a) the Obligations;
(b) accounts payable, accrued expenses (including, without limitation,
taxes) and customer advance payments incurred in the ordinary course of
business;
(c) Indebtedness secured by Permitted Liens;
(d) obligations under Interest Hedge Agreements with respect to the
Loans;
(e) Indebtedness of any Borrower or any of the Restricted Subsidiaries
to any Borrower or any other Restricted Subsidiary; provided, however, that the
corresponding debt instruments are pledged to the Administrative Agent as
security for the Obligations and such Indebtedness is expressly permitted
pursuant to Section 7.5 hereof;
(f) Indebtedness incurred by any Unrestricted Subsidiary; provided,
however, that such Indebtedness is non-recourse to the Parent, any of the
Borrowers or any Restricted
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Subsidiary and no Lien is placed on the equity interests of the Parent, any of
the Borrowers or any Restricted Subsidiary in such Unrestricted Subsidiary;
(g) Capitalized Lease Obligations;
(h) Indebtedness of any Borrower or any of the Restricted Subsidiaries
incurred in connection with an Acquisition; provided, however, that (i) such
Indebtedness (A) is owed to the seller thereof or an Affiliate thereof, (B) is
unsecured, (C) has no scheduled payment of principal prior to the full payment
of the Obligations, (D) is subject to terms and conditions and subordination
provisions which are acceptable to the Majority Lenders on the date of
incurrence, (E) when added to all other Indebtedness under this Section 7.1(h)
does not exceed at any time outstanding $30,000,000.00, and (ii) the Borrowers
are, at the time of incurrence of such Indebtedness (and after giving effect
thereto), in pro forma compliance with all of the covenants contained in this
Agreement;
(i) the Intracoastal Notes;
(j) Indebtedness as of the Agreement Date as set forth on Schedule 6
attached hereto; and
(k) the 2003 Senior Subordinated Discount Notes; provided that the
Borrowers are in compliance with Sections 2.7 and 5.16 hereof on the Business
Day following the effective date of the Escrow Corp. Merger.
Section 7.2 Limitation on Liens. The Borrowers shall not, and shall not
permit any of the Restricted Subsidiaries to, create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its properties or assets, whether now owned or
hereafter acquired, except for Permitted Liens.
Section 7.3 Amendment and Waiver. The Borrowers shall not, and shall not
permit any of the Restricted Subsidiaries to, enter into any amendment of, or
agree to or accept or consent to any waiver of any of the (a) material
provisions of its Articles or Certificate of Incorporation or limited liability
company agreement or partnership agreement, as appropriate, and any material
agreements, instruments or other documents relating to the transactions
contemplated herein involving AirTouch, AT&T, Triton and TV Azteca, in each
case, if the effect thereof would be to materially adversely affect the rights
of the Administrative Agent, the Lenders and the Issuing Bank hereunder or under
any Loan Document and (b)(i) provisions of the documents relating to the 2003
Senior Subordinated Discount Notes except, with respect to provisions other than
those noted in Section 7.3(b)(ii) below, amendments of such provisions that do
not cause such documents to be more restrictive to the Borrowers or more adverse
to the Lenders, and (ii) provisions of the documents relating to the 2003 Senior
Subordinated Discount Notes relating to subordination.
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Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Borrowers shall not, and shall not
permit any of the Restricted Subsidiaries to, at any time sell, lease, abandon,
or otherwise dispose of any assets (other than assets disposed of in the
ordinary course of business) without the prior written consent of the Majority
Lenders; provided, however, that the prior written consent of the Lenders shall
not be required for (i) the transfer of assets (including cash or cash
equivalents) among the Borrowers and the Restricted Subsidiaries (excluding
Subsidiaries of such Persons described in clause (b) of the definition of
"Subsidiary") or the transfer of assets (including cash or cash equivalents)
between or among Restricted Subsidiaries (excluding Subsidiaries of such Persons
described in clause (b) of the definition of "Subsidiary") or (ii) the
disposition of assets that contribute, in the aggregate, less than (A) fifteen
percent (15%) of Annualized Operating Cash Flow of the Borrowers and the
Restricted Subsidiaries as of the calendar quarter end immediately preceding
such disposition, and (B) twenty-five percent (25%) of the total Annualized
Operating Cash Flow of the Borrowers and the Restricted Subsidiaries for the
five (5) fiscal year period then ending; provided further, however, that, in
each case, no Default or Event of Default exists and none shall be caused to
occur as a result thereof. Upon any sale or disposition of a Restricted
Subsidiary permitted hereunder, the Administrative Agent and the Lenders shall,
at the Borrowers' expense, take such actions as the Borrowers reasonably request
to cause such Restricted Subsidiary to be released from its obligations under
the Loan Documents to which it is a party.
(b) Liquidation or Merger. The Borrowers shall not, and shall not
permit any of the Restricted Subsidiaries to, at any time, liquidate or dissolve
itself (or suffer any liquidation or dissolution) or otherwise wind up, or enter
into any merger, other than (i) a merger or consolidation among the Borrowers or
among any Borrower and one or more Restricted Subsidiaries, provided, however,
that any Borrower, as the case may be, is the surviving Person, or (ii) a merger
between or among two (2) or more Restricted Subsidiaries, or (iii) in connection
with an Acquisition permitted hereunder effected by a merger in which any
Borrower, as the case may be, or, in a merger in which none of the Borrowers is
a party, a Restricted Subsidiary is the surviving Person or the surviving Person
becomes a Restricted Subsidiary, or (iv) a merger or consolidation (including,
without limitation, in connection with an Acquisition permitted hereunder) among
the Borrowers, or any Borrower, or any Restricted Subsidiary on the one hand,
and any Person, on the other hand, where the surviving Person (A) is a
corporation, partnership, or limited liability company organized and existing
under the laws of the United States of America, any State thereof or the
District of Columbia, and (B) on the effective date of such merger or
consolidation expressly assume, by supplemental agreement, executed and
delivered to the Administrative Agent, for itself and on behalf of the Lenders
and the Issuing Bank, in form and substance reasonably satisfactory to the
Majority Lenders, all the Obligations of the Borrowers, or any Borrower, or such
Restricted Subsidiary, as the case may be, under the Notes, the Agreement and
the other Loan Documents, or (v) the Escrow Corp. Merger, or (vi) a liquidation
of a Restricted Subsidiary into a Borrower; provided further, however, that, in
each case, no Default or Event of Default exists and none shall be caused to
occur as a result thereof.
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Section 7.5 Limitation on Guaranties. The Borrowers shall not, and shall
not permit any of the Restricted Subsidiaries to, at any time Guaranty, assume,
be obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than (a) a guaranty by endorsement of
negotiable instruments for collection in the ordinary course of business, (b)
obligations under agreements of any Borrower or any of the Restricted
Subsidiaries entered into in connection with Acquisitions permitted under this
Agreement, leases of real property or the acquisition or furnishing of services,
supplies and equipment in the ordinary course of business of any Borrower or any
of the Restricted Subsidiaries, (c) Guaranties of Indebtedness incurred as
permitted pursuant to Section 7.1 hereof (other than Section 7.1(f) hereof), or
(d) as may be contained in any Loan Document including, without limitation, any
Subsidiary Guaranty.
Section 7.6 Investments and Acquisitions. The Borrowers shall not, and
shall not permit any of the Restricted Subsidiaries to, directly or indirectly,
make any loan or advance, or otherwise acquire for consideration evidences of
Indebtedness, capital stock or other securities of any Person or other assets or
property (other than assets or property in the ordinary course of business), or
make any Acquisition or Investment; provided, however, that the Borrowers and
the Restricted Subsidiaries may:
(a) directly or through a brokerage account or investment advisor (i)
purchase marketable, direct obligations of the United States of America, its
agencies and instrumentalities maturing within three hundred sixty-five (365)
days of the date of purchase, (ii) purchase commercial paper and other
short-term obligations and business savings accounts issued by corporations,
each of which shall have a combined net worth of at least $100,000,000.00 and
each of which conducts a substantial part of its business in the United States
of America, maturing within two hundred seventy (270) days from the date of the
original issue thereof, and whose issuer is, at the time of purchase, rated
"P-2" or better by ▇▇▇▇▇'▇ or "A-2" or better by Standard and Poor's; (iii)
purchase repurchase agreements, bankers' acceptances, and domestic and
Eurodollar certificates of deposit maturing within three hundred sixty-five
(365) days of the date of purchase which are issued by, or time deposits
maintained with, (A) a United States national or state bank (or any domestic
branch of a foreign bank) subject to supervision and examination by federal or
state banking or depository institution authorities and having capital, surplus
and undivided profits totaling more than $100,000,000.00 and rated "A" or better
by ▇▇▇▇▇'▇ or Standard and Poor's, or (B) a Broker/Dealer, and (iv) invest in
money market funds having a rating from ▇▇▇▇▇'▇ and Standard and Poor's in the
highest investment category granted thereby;
(b) so long as no Default then exists or would be caused thereby,
establish Unrestricted Subsidiaries and make Investments in (i) such
Unrestricted Subsidiaries (in addition to Investments permitted under Section
7.6(d) and (f) hereof), and (ii) Persons (other than Verestar, Inc. or its
Subsidiaries) primarily engaged in domestic and foreign communications tower and
tower related businesses (but not Teleport Businesses), directly or indirectly;
provided that, after giving effect to such additional Investment, the aggregate
Net Investment Amount made pursuant to the provisions of this Section 7.6(b)
shall not exceed, from and after
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October 18,2002, $50,000,000.00 at any time; provided further that, in the case
of Investments made pursuant to clause (ii) of this Section 7.6(b), the Parent,
any Borrower or any of the Restricted Subsidiaries has executed a binding
acquisition, merger, lease/sublease or management agreement with such Person and
that notwithstanding the foregoing Unrestricted Subsidiaries may make
Investments and Acquisitions otherwise prohibited under this Section 7.6 hereof
(provided, however, that Unrestricted Subsidiaries (1) may not make Investments
in any Verestar Entity and (2) shall, from and after October 18, 2002, make
Investments only (x) in Persons primarily engaged in domestic and foreign
communications tower and tower related businesses (but not Teleport
Businesses)and (y) as permitted pursuant to Section 7.6(a) hereof);
(c) so long as no Default then exists or would be caused thereby, and
subject to compliance with Section 5.13 hereof, make Acquisitions; provided,
however, that the Borrowers and the Restricted Subsidiaries may not make any
Acquisitions of (i) tower management businesses, (ii) tower site management
businesses or (iii) Teleport Businesses;
(d) make Investments consisting of the Sconnix Note;
(e) so long as no Default then exists or would be caused thereby, (i)
make loans and advances to employees of the Parent, any Borrower or any of the
Restricted Subsidiaries in the ordinary course of business and (ii) receive
notes from employees in an amount not to exceed $5,000,000.00 in the aggregate
outstanding at any time in connection with the exercise of stock options; and
(f) all Investments made by the Borrowers and their Subsidiaries in
the Verestar Entities on or prior to October 18, 2002; provided, that after
October 18, 2002, so long as no Default then exists or would be caused thereby,
the Borrowers and their Subsidiaries may make secured loans (but not
investments) in an aggregate amount at any one time outstanding not to exceed
$25,000,000 to one or more Verestar Entities so long as the notes evidencing
such loans are pledged to the Administrative Agent as Collateral.
Notwithstanding the limitations set forth elsewhere in this Section 7.6, the
Borrowers and the Restricted Subsidiaries may make Acquisitions and Investments
using Capital Stock of the Parent in lieu of cash (and the value of such Capital
Stock shall be excluded from the monetary limitations set forth above in this
Section 7.6).
Section 7.7 Restricted Payments. The Borrowers shall not, and shall not
permit any of the Restricted Subsidiaries to, directly or indirectly declare or
make any Restricted Payment; provided, however, that so long as no Default or
Event of Default hereunder then exists or would be caused thereby, the Borrowers
may make, (a) subject to Section 2.7(b)(iv) hereof, cash distributions in an
aggregate amount for all Borrowers not to exceed fifty percent (50%) of Excess
Cash Flow for the immediately preceding calendar year, on or after April 15th of
each calendar year commencing on April 15, 2004; (b) distributions to the Parent
to make scheduled principal and interest payments on the Convertible Notes and
the Senior Notes due 2009 and any refinancings thereof that would not cause a
Default under Section 8.1(p) hereof; (c) on or prior to
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June 30, 2004,distributions to the Parent to pay, repurchase, redeem or
otherwise retire all or any portion of the Parent's 2.25% Convertible Notes due
2009; provided that (i) the amount of any such distributions shall be no greater
than the face amount of the Parent's 2.25% Convertible Notes due 2009 plus
accrued interest thereon and (ii) such distributions may only be made to the
extent that funds are available therefor in the Proceeds Account; and (d) on and
after the earlier of (i) the date on which that portion (if any) of the Parent's
2.25% Convertible Notes due 2009 that are required by the holders thereof to be
repurchased as of October 22, 2003 are paid, repurchased, redeemed or otherwise
retired and (ii) the date on which the Parent's 2.25% Convertible Notes due 2009
are paid, repurchased, redeemed or otherwise retired in full, but on or prior to
June 30, 2004, distributions to the Parent to enable the Parent to pay,
repurchase, redeem or otherwise retire all or any portion of the Convertible
Notes (other than the Parent's 2.25% Convertible Notes due 2009) and the Senior
Notes due 2009; provided that any payment, repurchase, redemption or other
retirement of the Convertible Notes (other than the Parent's 2.25% Convertible
Notes due 2009) and the Senior Notes due 2009 shall be at a price no greater
than the face amount thereof plus accrued interest thereon; provided further
that any distributions made pursuant to this Section 7.7(d) (x) shall not exceed
an aggregate amount equal to $217,000,000.00 minus any Restricted Payments made
pursuant to Section 7.7(c) hereof and (y) may only be made to the extent that
funds are available therefor in the Proceeds Account.
Section 7.8 Leverage Ratio. (a) As of the end of any calendar quarter, (b)
at the time of any Advance hereunder (after giving effect to such Advance) and
(c) at the time of the issuance of any Letter of Credit (after giving effect to
such Letter of Credit), the Borrowers shall not permit the Leverage Ratio to
exceed the ratios set forth below during the periods indicated:
Period Ratio
------ -----
October 1, 2002 through
December 31, 2002 6.00 to 1.00
January 1, 2003 through
June 30, 2003 6.25 to 1.00
July 1, 2003 through
September 30, 2003 6.00 to 1.00
October 1, 2003 through
December 31, 2003 5.75 to 1.00
January 1, 2004 through
March 31, 2004 5.50 to 1.00
April 1, 2004 through
June 30, 2004 5.25 to 1.00
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July 1, 2004 through
September 30, 2004 5.00 to 1.00
October 1, 2004 through
December 31, 2004 4.75 to 1.00
January 1, 2005 through
March 31, 2005 4.50 to 1.00
April 1, 2005 through
June 30, 2005 4.25 to 1.00
July 1, 2005 and thereafter 4.00 to 1.00
Section 7.9 Interest Coverage Ratio. The Borrowers shall maintain, on a
consolidated basis, at all times during the applicable periods set forth below,
a ratio of (a) Annualized Operating Cash Flow for the most recently completed
fiscal quarter to (b) Interest Expense for the four quarters immediately
preceding the calculation date of not less than the ratio set forth below
opposite each such period:
Period Ratio
------ -----
October 1, 2002 through December 31, 2002 2.00 to 1.00
January 1, 2003 through December 31, 2003 2.50 to 1.00
January 1, 2004 and thereafter 3.00 to 1.00
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service. (a)
As of the end of any calendar quarter, (b) at the time of any Advance hereunder
(after giving effect to such Advance) and (c) at the time of the issuance of any
Letter of Credit (after giving effect to such Letter of Credit), the Borrowers,
on a consolidated basis, shall not permit the ratio of (i) Annualized Operating
Cash Flow for such fiscal quarter or, if applicable, the most recently completed
fiscal quarter to (ii) Pro Forma Debt Service on such date to be less than
1.00:1.00.
Section 7.11 Fixed Charge Coverage Ratio. Commencing December 31, 2003, (a)
as of the end of any calendar quarter, (b) at the time of any Advance hereunder
(after giving effect to such Advance) and (c) at the time of the issuance of any
Letter of Credit (after giving effect to such Letter of Credit), the Borrowers,
on a consolidated basis, shall not permit the ratio of Annualized Operating Cash
Flow for such fiscal quarter or the most recently completed fiscal quarter to
Fixed Charges on such date to be less than or equal to 1.00 to 1.00.
Section 7.12 Affiliate Transactions. Except as specifically provided herein
(including, without limitation, Sections 7.4, 7.6 and 7.7 hereof), as may be
described on Schedule 5 attached
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hereto and except for tax sharing agreements among one or more of the Parent and
its Subsidiaries which have been consented to by the Administrative Agent (which
consent shall not be unreasonably withheld, delayed or conditioned), the
Borrowers shall not, and shall not permit any of the Restricted Subsidiaries to,
at any time engage in any transaction with an Affiliate, other than between or
among any Borrower and any Restricted Subsidiary that is wholly-owned directly
or indirectly by one or more Borrowers, or make an assignment or other transfer
of any of its properties or assets to any Affiliate, on terms less advantageous
to such Borrower or such Restricted Subsidiary than would be the case if such
transaction had been effected with a non-Affiliate.
Section 7.13 ERISA Liabilities. The Borrowers shall not, and shall cause
each of their ERISA Affiliates not to, (a) permit the assets of any of their
respective Plans which are required to be funded to be less than the amount
necessary to provide all accrued benefits under such Plans, or (b) enter into
any Multiemployer Plan.
Section 7.14 Sales and Leasebacks. The Borrowers will not and will not
permit any Restricted Subsidiary to enter into, any arrangement, directly or
indirectly, with any third party whereby any Borrower or a Restricted Subsidiary
shall sell or transfer any property, real or personal, whether now owned or
hereafter acquired, and whereby any Borrower or such Restricted Subsidiary shall
then or thereafter rent or lease as lessee such property or any part thereof or
other property which any Borrower or such Restricted Subsidiary intends to use
for substantially the same purpose or purposes as the property sold or
transferred.
Section 7.15 Senior Leverage Ratio. (a) As of the end of any calendar
quarter, (b) at the time of any Advance hereunder (after giving effect to such
Advance) and (c) at the time of the issuance of any Letter of Credit (after
giving effect to such Letter of Credit), the Borrowers shall not permit the
ratio of (i) Senior Debt on such date to (ii) Annualized Operating Cash Flow as
of such date to exceed the ratios set forth below during the periods indicated:
Period Ratio
------ -----
January 1, 2003 through
March 31, 2003 4.90 to 1.00
April 1, 2003 through
June 30, 2003 4.75 to 1.00
July 1, 2003 through
September 30, 2003 4.50 to 1.00
October 1, 2003 through
December 31, 2003 4.25 to 1.00
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January 1, 2004 through
March 31, 2004 4.00 to 1.00
April 1, 2004 through
June 30, 2004 3.75 to 1.00
July 1, 2004 through
September 30, 2004 3.50 to 1.00
October 1, 2004 through
December 31, 2004 3.25 to 1.00
January 1, 2005 and thereafter 3.00 to 1.00
ARTICLE 8 Default
Section 8.1 Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) any representation or warranty made under this Agreement shall
prove incorrect or misleading in any material respect when made or deemed to be
made pursuant to Section 4.2 hereof;
(b) the Borrowers shall default in the payment of (i) any interest
under any of the Notes or fees or other amounts payable to the Lenders and the
Administrative Agent under any of the Loan Documents, or any of them, when due,
and such Default shall not be cured by payment in full within three (3) Business
Days from the due date or (ii) any principal under any of the Notes when due;
(c) the Borrowers shall default in the performance or observance of
any agreement or covenant contained in Sections 5.2(a), 5.10, 5.16, 6.5, 7.1,
7.2, 7.4, 7.5, 7.7, 7.8, 7.9, 7.10, 7.11 and 7.15 hereof;
(d) the Borrowers shall default in the performance or observance of
any other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 8.1, and such default shall not be cured
within a period of thirty (30) days (or with respect to Sections 5.3, 5.4, 5.5,
5.6, 5.7, 5.8, 5.9, 5.14, 5.15, 6.4, 7.3, 7.12, 7.13 and 7.14 hereof, such
longer period not to exceed sixty (60) days if such default is curable within
such period and the Borrowers are proceeding in good faith with all diligent
efforts to cure such default) from the later of (i) occurrence of such Default
and (ii) the date on which such Default became Known to any of the Borrowers;
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(e) there shall occur any default in the performance or observance of
any agreement or covenant or breach of any representation or warranty contained
in any of the Loan Documents (other than this Agreement or as otherwise provided
in this Section 8.1) by the Borrowers, any of the Restricted Subsidiaries, or
any other obligor thereunder, which shall not be cured within a period of thirty
(30) days (or such longer period not to exceed sixty (60) days if such default
is curable within such period and the Borrowers or such Restricted Subsidiaries
or other obligor are proceeding in good faith with all diligent efforts to cure
such default) from the date on which such default became Known to any of the
Borrowers;
(f) there shall be entered and remain unstayed a decree or order for
relief in respect of any Borrower, any of the Restricted Subsidiaries or the
Parent under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other applicable Federal or state bankruptcy law or other
similar law, or appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official of any Borrower, any of the Restricted
Subsidiaries or the Parent, or of any substantial part of their respective
properties, or ordering the winding-up or liquidation of the affairs of any
Borrower, any of the Restricted Subsidiaries or the Parent; or an involuntary
petition shall be filed against any Borrower, any of the Restricted Subsidiaries
or the Parent and a temporary stay entered, and (i) such petition and stay shall
not be diligently contested, or (ii) any such petition and stay shall continue
undismissed for a period of ninety (90) consecutive days;
(g) any Borrower, any of the Restricted Subsidiaries or the Parent
shall file a petition, answer or consent seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
applicable Federal or state bankruptcy law or other similar law, or any
Borrower, any of the Restricted Subsidiaries or the Parent shall consent to the
institution of proceedings thereunder or to the filing of any such petition or
to the appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of any Borrower, any
of the Restricted Subsidiaries or the Parent or of any substantial part of their
respective properties, or any Borrower, any of the Restricted Subsidiaries or
the Parent shall fail generally to pay their respective debts as they become due
or shall be adjudicated insolvent; any Borrower, as the case may be, shall
suspend or discontinue its business, except as permitted by Section 7.4 hereof;
any Borrower, any of the Restricted Subsidiaries or the Parent shall have
concealed, removed any of its property with the intent to hinder or defraud its
creditors or shall have made a fraudulent or preferential transfer under any
applicable fraudulent conveyance or bankruptcy law; or any Borrower, any of the
Restricted Subsidiaries or the Parent shall take any action in furtherance of
any such action;
(h) a judgment not covered by insurance or indemnification, where the
indemnifying party has agreed to indemnify and is financially able to do so,
shall be entered by any court against any Borrower or any of the Restricted
Subsidiaries for the payment of money which exceeds singly, or in the aggregate
with other such judgments, $10,000,000.00, or a warrant of attachment or
execution or similar process shall be issued or levied against property of any
Borrower or any of the Restricted Subsidiaries which, together with all other
such
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property of any Borrower or any of the Restricted Subsidiaries subject to other
such process, exceeds in value $10,000,000.00 in the aggregate, and if, within
thirty (30) days after the entry, issue or levy thereof, such judgment, warrant
or process shall not have been paid or discharged or stayed pending appeal or
removed to bond, or if, after the expiration of any such stay, such judgment,
warrant or process, shall not have been paid or discharged or removed to bond;
(i) there shall be at any time any "accumulated funding deficiency,"
as defined in ERISA or in Section 412 of the Code, with respect to any Plan
maintained by any Borrower or any of its Restricted Subsidiaries or any ERISA
Affiliate, or to which any Borrower or any of its Restricted Subsidiaries or any
ERISA Affiliate has any liabilities, or any trust created thereunder; or a
trustee shall be appointed by a United States District Court to administer any
such Plan; or PBGC shall institute proceedings to terminate any such Plan; or
any Borrower or any of its Restricted Subsidiaries or any ERISA Affiliate shall
incur any liability to PBGC in connection with the termination of any such Plan;
or any Plan or trust created under any Plan of any Borrower or any of its
Restricted Subsidiaries or any ERISA Affiliate shall engage in a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) which would subject any such Plan, any trust created thereunder, any
trustee or administrator thereof, or any party dealing with any such Plan or
trust to material tax or penalty on "prohibited transactions" imposed by Section
502 of ERISA or Section 4975 of the Code;
(j) there shall occur (i) any acceleration of the maturity of any
Indebtedness of the Parent, any Borrower or any of the Restricted Subsidiaries
in an aggregate principal amount exceeding $10,000,000.00 (including, without
limitation, under the 2003 Senior Subordinated Discount Notes), or, as a result
of a failure to comply with the terms thereof, such Indebtedness shall otherwise
have become due and payable; (ii) any event or condition the occurrence of which
would permit such acceleration of such Indebtedness, or which, as a result of a
failure to comply with the terms thereof, would make such Indebtedness otherwise
due and payable, and which event or condition has not been cured within any
applicable cure period or waived in writing prior to any declaration of an Event
of Default or acceleration of the Loans hereunder or any event which would
entitle the holders of such Indebtedness to require the repurchase of such
Indebtedness; or (iii) any material default under any Interest Hedge Agreement
which would permit the obligation of any Borrower to make payments to the
counterparty thereunder to be then due and payable;
(k) the Borrowers and the Restricted Subsidiaries are for any reason
no longer able to operate or manage the related communications tower facilities
or portions thereof and retain the revenue received therefrom, and the overall
effect of it would be to reduce Annualized Operating Cash Flow (determined as at
the last day of the most recently ended fiscal year of the Borrowers) by ten
percent (10%) or more;
(l) any material Loan Document or any material provision thereof,
shall at any time and for any reason be declared by a court of competent
jurisdiction to be null and void, or a proceeding shall be commenced by the
Parent, any Borrower
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or any of the Restricted Subsidiaries or by any governmental authority having
jurisdiction over the Parent, any Borrower or any of the Restricted Subsidiaries
seeking to establish the invalidity or unenforceability thereof (exclusive of
questions of interpretation of any provision thereof), or the Parent, any
Borrower or any of the Restricted Subsidiaries shall deny that it has any
liability or obligation for the payment of principal or interest purported to be
created under any Loan Document;
(m) any material Security Document shall, for any reason, fail or
cease (except by reason of lapse of time) to create a valid and perfected and
first-priority Lien on or Security Interest in any material portion of the
Collateral purported to be covered thereby;
(n) there shall occur any Change of Control;
(o) any Borrower or any of the Restricted Subsidiaries shall be
indicted under the Racketeer Influenced and Corrupt Organizations Act of 1970
(18 U.S.C. (S) 1961 et seq.);
(p) the Parent shall incur or permit to remain outstanding any
Indebtedness for Money Borrowed other than (i) the Convertible Notes, (ii) the
Senior Notes due 2009 in an aggregate principal amount not to exceed at any time
outstanding $1,000,000,000, (iii) any refinancing of the foregoing in an amount
not exceeding the outstanding principal amount of the Indebtedness being
refinanced on the date of such refinancing and otherwise having terms no less
favorable in any material respect to the Lenders than the Indebtedness being
refinanced, (iv) that certain Guaranty Agreement dated as of February 10, 2000
made by the Parent in favor of TV Azteca and Television Azteca, S.A. de C.V., a
sociedad anonima de capital variable organized under the laws of Mexico, (v)
that certain Guaranty dated November 30, 1999 made by the Parent in favor of ICG
Holdings, (vi) that certain guaranty to be made by the Parent of the
Indebtedness under the 2003 Senior Subordinated Discount Notes upon consummation
of the Escrow Corp. Merger, (vii) any guaranty by the Parent of the Obligations,
and (viii) Indebtedness under any permitted refinancing of the 2003 Senior
Subordinated Discount Notes;
(q) the Parent shall sell or issue any Capital Stock (other than net
proceeds in an amount not to exceed $2,000,000.00 in the aggregate after January
6, 2000 from the sale of securities in connection with any employee stock option
plan of the Parent or any of its Subsidiaries) or Indebtedness for cash, the net
proceeds of which are not contributed as equity to the Borrowers, other than
Capital Stock issued in connection with an Acquisition permitted hereunder or
Indebtedness for Money Borrowed permitted under Section 8.1(p)(iii) hereof;
(r) any Subsidiary of the Parent which guarantees the 2003 Senior
Subordinated Discount Notes does not also guaranty the Obligations or become a
Borrower hereunder; or
(s) the failure of the Parent or Verestar, Inc. to comply with its
respective obligations in the second sentence of Section 2(c)(ii) or the fifth
or sixth sentence of Section 3(a) of the Seventh Amendment to the Prior Loan
Agreement dated as of October 18, 2002; provided that the failure of Verestar,
Inc. to comply with its obligations in (i) the second sentence of Section
2(c)(ii) of such Seventh Amendment shall be subject to any cure period
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applicable to Section 5.6 hereof in Section 8.1(d) hereof, and (ii) Sections
7.3, 7.6, 7.12 and 7.14 as required in such Seventh Amendment shall be subject
to any cure period applicable for such section as set forth in Section 8.1(d)
hereof.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1 (other than an
Event of Default under Section 8.1(f) or (g) hereof) shall have occurred and
shall be continuing, the Administrative Agent, at the request of the Majority
Lenders but subject to Section 9.8 hereof, shall (i) (A) terminate the Revolving
Loan Commitments and/or (B) declare the principal of and interest on the Loans
and the Notes and all other amounts owed to the Lenders and the Administrative
Agent under this Agreement, the Notes and any other Loan Documents to be
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived, anything in this
Agreement, the Notes or any other Loan Document to the contrary notwithstanding,
and the Revolving Loan Commitments shall thereupon forthwith terminate, and (ii)
require the Borrowers to, and the Borrowers shall thereupon, deposit in an
interest bearing account with the Administrative Agent, as cash collateral for
the Obligations, an amount equal to the maximum amount currently or at any time
thereafter available to be drawn on all outstanding Letters of Credit, and each
of the Borrowers hereby pledges to the Administrative Agent, the Lenders having
a Revolving Loan Commitment and the Issuing Bank and grants to them a security
interest in, all such cash as security for the Obligations.
(b) Upon the occurrence and continuance of an Event of Default
specified in Section 8.1(f) or (g) hereof, all principal, interest and other
amounts due hereunder and under the Notes, and all other Obligations, shall
thereupon and concurrently therewith become due and payable and the Revolving
Loan Commitments shall forthwith terminate and the principal amount of the Loans
outstanding hereunder shall bear interest at the Default Rate, and the Borrowers
shall thereupon forthwith deposit in an interest bearing account with the
Administrative Agent, as cash collateral for the Obligations, an amount equal to
the maximum amount currently or at any time thereafter available to be drawn on
all outstanding Letters of Credit, all without any action by the Administrative
Agent, the Lenders, the Majority Lenders, the Issuing Bank, or any of them, and
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or in the other Loan Documents
to the contrary notwithstanding.
(c) Upon acceleration of the Notes, as provided in Section 8.2(a) or
(b) hereof, the Administrative Agent, the Issuing Bank and the Lenders shall
have all of the post-default rights granted to them, or any of them, as
applicable under the Loan Documents and under Applicable Law.
(d) Upon acceleration of the Notes, as provided in Section 8.2(a) or
(b) hereof, the Administrative Agent shall have the right (but not the
obligation) upon the request of the Lenders to operate the communications tower
facilities of the Borrowers and the Restricted
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Subsidiaries and, pursuant to the terms and subject to any limitations contained
in the Security Documents and, within guidelines established by the Majority
Lenders, to make any and all payments and expenditures necessary or desirable in
connection therewith, including, without limitation, payment of wages as
required under the Fair Labor Standards Act, as amended, and of any necessary
withholding taxes to state or federal authorities. In the event the Majority
Lenders fail to agree upon the guidelines referred to in the preceding sentence
within six (6) Business Days' after the Administrative Agent has begun to
operate the communications tower facilities, the Administrative Agent may, after
giving three (3) days' prior written notice to the Lenders of its intention to
do so, make such payments and expenditures as it deems reasonable and advisable
in its sole discretion to maintain the normal day-to-day operation of such
communications tower facilities. If no proceeding of the types described in
Section 8.1(f) or (g) hereof has been commenced, such payments and expenditures
in excess of receipts shall constitute Advances under the Revolving Loan
Commitments, not in excess of the amount of the Revolving Loan Commitments.
Advances made pursuant to this Section 8.2(d) shall bear interest as provided in
Section 2.3(d) hereof and shall be payable by the Borrowers on demand. The
making of one or more Advances under this Section 8.2(d) shall not create any
obligation on the part of the Lenders to make any additional Advances hereunder.
No exercise by the Administrative Agent of the rights granted to it under this
Section 8.2(d) shall constitute a waiver of any other rights and remedies
granted to the Administrative Agent, the Issuing Bank and the Lenders, or any of
them, under this Agreement or at law. Each Borrower hereby irrevocably appoints
the Administrative Agent, as agent for the Lenders and the Issuing Bank, the
true and lawful attorney of each of them, in its name and stead and on its
behalf, to execute, receipt for or otherwise act in connection with any and all
contracts, instruments or other documents in connection with the completion and
operation of the communications tower facilities in the exercise of the
Administrative Agent's, the Issuing Bank's and the Lenders' rights under this
Section 8.2(d). Such power of attorney is coupled with an interest and is
irrevocable.
(e) Upon acceleration of the Notes, as provided in Section 8.2(a) or
(b) hereof, the Administrative Agent, upon request of the Majority Lenders,
shall have the right to appoint a receiver for the properties and assets of the
Borrowers and the Restricted Subsidiaries, and each Borrower, for itself and on
behalf of the Restricted Subsidiaries, hereby consents to such rights and such
appointment and hereby waives any objection any Borrower or any Restricted
Subsidiary may have thereto or the right to have a bond or other security posted
by the Administrative Agent, for itself and on behalf of the Lenders and the
Issuing Bank, in connection therewith.
(f) The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder shall be cumulative, and not exclusive.
(g) In the event that the Administrative Agent establishes a cash
collateral account as contemplated by this Section 8.2, the Administrative Agent
shall invest all funds in such account in such investments as the Administrative
Agent, in its sole and absolute discretion, deems appropriate. Each of the
Borrowers hereby acknowledges and agrees that any interest earned on such funds
shall be retained by the Administrative Agent as additional collateral for
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the Obligations. Upon satisfaction in full of all Obligations, the
Administrative Agent shall pay any amounts then held in such account to the
Borrowers.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments under this Agreement made to the Administrative Agent, the
Issuing Bank and the Lenders or otherwise received by any of such Persons (from
realization on Collateral for the Obligations or otherwise) shall be paid over
to the Administrative Agent (if necessary) and distributed by the Administrative
Agent as follows: first, to the Administrative Agent's, Lenders' and Issuing
Bank's reasonable costs and expenses, if any, incurred in connection with the
collection of such payment or prepayment, including, without limitation, any
reasonable costs incurred by it in connection with the sale or disposition of
any Collateral for the Obligations and all amounts under Section 11.2(b) hereof;
second, to the Administrative Agent and the Issuing Bank for any fees hereunder
or under any of the other Loan Documents then due and payable; third, to the
Lenders pro rata on the basis of their respective unpaid principal amounts
(except as provided in Section 2.2(e) hereof), to the payment of any unpaid
interest which may have accrued on the Obligations and any fees hereunder or
under any of the other Loan Documents then due and payable; fourth, to the
Lenders pro rata until all Loans have been paid in full (and, for purposes of
this clause, obligations under Interest Hedge Agreements with the Lenders (or
any of their Affiliates) or any of them shall be paid on a pro rata basis with
the Loans); fifth, to the Lenders pro rata on the basis of their respective
unpaid amounts, to the payment of any other unpaid Obligations; and sixth, to
the Borrowers or as otherwise required by Applicable Law.
ARTICLE 9 The Administrative Agent
Section 9.1 Appointment and Authorization. Each Lender hereby appoints and
authorizes, and hereby agrees that it will require any transferee of any of its
interest in its portion of the Loans and in its Note to appoint and authorize,
the Administrative Agent to take such actions as its agent on its behalf and to
exercise such powers hereunder and under the other Loan Documents as are
delegated by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Neither the Administrative Agent, nor any of its
respective directors, officers, employees or agents, shall be liable for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat each
Lender, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Lender in
its portion of the Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent.
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Section 9.3 Consultation with Counsel. The Administrative Agent may consult
with Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Atlanta, Georgia, special counsel
to the Administrative Agent, or with other legal counsel selected by it and
shall not be liable for any action taken or suffered by it in good faith in
consultation with the Majority Lenders and in reasonable reliance on such
consultations.
Section 9.4 Documents. The Administrative Agent shall be under no duty to
examine, inquire into, or pass upon the validity, effectiveness or genuineness
of this Agreement, any Note, any other Loan Document, or any instrument,
document or communication furnished pursuant hereto or in connection herewith,
and the Administrative Agent shall be entitled to assume that they are valid,
effective and genuine, have been signed or sent by the proper parties and are
what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to the
Revolving Loan Commitment and the Loans, the Administrative Agent shall have the
same rights and powers hereunder as any other Lender, and the Administrative
Agent and Affiliates of the Administrative Agent may accept deposits from, lend
money to and generally engage in any kind of business with any Borrower, any of
its Subsidiaries or other Affiliates of, or Persons doing business with, any
Borrower, any of its Subsidiaries or other Affiliates, as if they were not
affiliated with the Administrative Agent and without any obligation to account
therefor.
Section 9.6 Responsibility of the Administrative Agent and Issuing Bank.
The duties and obligations of the Administrative Agent and the Issuing Bank
under this Agreement are only those expressly set forth in this Agreement. The
Administrative Agent shall be entitled to assume that no Default or Event of
Default has occurred and is continuing unless it has actual knowledge, or has
been notified in writing by any Borrower, of such fact, or has been notified by
a Lender in writing that such Lender considers that a Default or an Event of
Default has occurred and is continuing, and such Lender shall specify in detail
the nature thereof in writing. The Administrative Agent and the Issuing Bank
shall not be liable hereunder for any action taken or omitted to be taken except
for its own respective gross negligence or willful misconduct as determined by a
final, non-appealable judicial order of a court of competent jurisdiction. The
Administrative Agent shall provide each Lender and the Issuing Bank with copies
of such documents received from the Borrowers as such Lender and the Issuing
Bank may reasonably request.
Section 9.7 Action by the Administrative Agent and Issuing Bank.
(a) The Administrative Agent and the Issuing Bank shall be entitled to
use its discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, and with respect to taking or refraining
from taking any action or actions which it may be able to take under or in
respect of, this Agreement, unless the Administrative Agent and the Issuing Bank
or the Issuing Bank, as applicable, shall have been instructed by the Majority
Lenders (or, where expressly required, all Lenders) to exercise or refrain from
exercising such
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rights or to take or refrain from taking such action; provided, however, that
the Administrative Agent shall not exercise any rights under Section 8.2(a)
hereof without the request of the Majority Lenders (or, where expressly
required, all the Lenders), unless time is of the essence, in which case, such
action can be taken at the discretion of the Administrative Agent. The
Administrative Agent shall incur no liability under or in respect of this
Agreement with respect to anything which it may do or refrain from doing in the
reasonable exercise of its judgment or which may seem to it to be necessary or
desirable in the circumstances, except for its gross negligence or willful
misconduct as determined by a final, non-appealable judicial order of a court
having jurisdiction over the subject matter.
(b) The Administrative Agent and the Issuing Bank shall not be liable
to the Lenders or to any Lender or to any Borrower, any of their Subsidiaries,
the Parent or any other obligor under any Loan Document in acting or refraining
from acting under this Agreement or any other Loan Document in accordance with
the instructions of the Majority Lenders (or, where expressly required, all of
the Lenders), and any action taken or failure to act pursuant to such
instructions shall be binding on all of the Lenders, except for its gross
negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court having jurisdiction over the subject matter. The
Administrative Agent and the Issuing Bank shall not be obligated to take any
action which is contrary to law or which would in its reasonable opinion subject
it to liability.
Section 9.8 Notice of Default or Event of Default. In the event that the
Administrative Agent, any Lender or the Issuing Bank shall acquire actual
knowledge, or shall have been notified, of any Default or Event of Default, the
Administrative Agent, such Lender or the Issuing Bank shall promptly notify the
Lenders (provided, however, that the failure to give such notice shall not
result in any liability on the part of such Lender, the Issuing Bank or the
Administrative Agent), and the Administrative Agent shall take such action and
assert such rights under this Agreement and the other Loan Documents as the
Majority Lenders shall request in writing, and the Administrative Agent shall
not be subject to any liability by reason of its acting pursuant to any such
request. If the Majority Lenders shall fail to request the Administrative Agent
to take action or to assert rights under this Agreement or any other Loan
Documents in respect of any Default or Event of Default within ten (10) days
after their receipt of the notice of any Default or Event of Default from the
Administrative Agent, any Lender or the Issuing Bank, or shall request
inconsistent action with respect to such Default or Event of Default, the
Administrative Agent may, but shall not be required to, take such action and
assert such rights (other than rights under Article 8 hereof) as it deems in its
discretion to be advisable for the protection of the Lenders, except that, if
the Majority Lenders have instructed the Administrative Agent not to take such
action or assert such right, in no event shall the Administrative Agent act
contrary to such instructions, unless time is of the essence, in which case, the
Administrative Agent may act in accordance with its reasonable discretion.
Section 9.9 Responsibility Disclaimed. The Administrative Agent shall not
be under any liability or responsibility whatsoever as Administrative Agent:
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(a) to any Borrower or any other Person as a consequence of any
failure or delay in performance by, or any breach by, any Lender or Lenders of
any of its or their obligations under this Agreement;
(b) to any Lender or Lenders as a consequence of any failure or delay
in performance by, or any breach by, (i) the Borrowers of any of their
obligations under this Agreement or the Notes or any other Loan Document, or
(ii) any Restricted Subsidiary or any other obligor under any other Loan
Document;
(c) to any Lender or Lenders, for any statements, representations or
warranties in this Agreement, or any other document contemplated by this
Agreement or any information provided pursuant to this Agreement, any other Loan
Document, or any other document contemplated by this Agreement, or for the
validity, effectiveness, enforceability or sufficiency of this Agreement, the
Notes, any other Loan Document, or any other document contemplated by this
Agreement; or
(d) to any Person for any act or omission other than that arising from
gross negligence or willful misconduct of the Administrative Agent as determined
by a final, non-appealable judicial order of a court of competent jurisdiction.
Section 9.10 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrowers) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses (other than the loss of principal, interest and
fees hereunder in the event of a bankruptcy or out-of-court `work-out' of the
Loans), damages, penalties, actions, judgments, suits, or reasonable
out-of-pocket costs, expenses (including, without limitation, fees and
disbursements of experts, agents, consultants and counsel), or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement or any other Loan Document or any action taken or omitted by the
Administrative Agent under this Agreement, any other Loan Document, or any other
document contemplated by this Agreement, except that no Lender shall be liable
to the Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, or reasonable
out-of-pocket costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent as determined by a
final, non-appealable judicial order of a court having jurisdiction over the
subject matter.
Section 9.11 Credit Decision. Each Lender confirms that:
(a) in making its decision to enter into this Agreement and to make
its portion of the Loans it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrowers and
that it has made an independent credit judgment, and that it has not relied upon
the Administrative Agent or information provided by
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the Administrative Agent (other than information provided to the Administrative
Agent by the Borrowers and forwarded by the Administrative Agent to the
Lenders); and
(b) so long as any portion of the Loans remains outstanding or such
Lender has an obligation to make its portion of Advances hereunder, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Borrowers.
Section 9.12 Successor Administrative Agent. Subject to the appointment and
acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders, the Issuing Bank and the Borrowers and may be removed at any time
for cause by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders shall have the right to appoint a successor Administrative
Agent which appointment shall, prior to a Default, be subject to the consent of
the Borrowers, acting reasonably. If (a) no successor Administrative Agent shall
have been so appointed by the Majority Lenders or (b) if appointed, no successor
Administrative Agent shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gave notice of resignation or the
Majority Lenders removed the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank, appoint
a successor Administrative Agent which shall be any Lender or a commercial bank
organized under the laws of the United States of America or any political
subdivision thereof which has combined capital and reserves in excess of
$250,000,000.00 and which shall be reasonably acceptable to the Borrowers. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative Agent the provisions
of this Article shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as the
Administrative Agent. In the event that the Administrative Agent or any of its
respective Affiliates ceases to be a Lender hereunder, such Person shall resign
its agency hereunder.
Section 9.13 Delegation of Duties. The Administrative Agent may execute any
of its duties under the Loan Documents by or through agents or attorneys
selected by it using reasonable care, and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
Section 9.14 No Responsibilities of the Agents. Notwithstanding any
provision to the contrary contained elsewhere herein or in any other Loan
Document, the Co-Syndication Agents and the Co-Documentation Agents shall not
have any duties or responsibilities, nor shall the Co-Syndication Agents or the
Co-Documentation Agents have or be deemed to have any fiduciary relationship
with any Lender or participant, 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
Co-Syndication Agents and the Co-Documentation Agents.
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ARTICLE 10 Changes in Circumstances
Affecting LIBOR Advances and Increased Costs
Section 10.1 LIBOR Basis Determination Inadequate or Unfair. If with
respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period or that adequate and
fair means do not exist for determining the LIBOR Basis, the Administrative
Agent shall forthwith give notice thereof to the Borrowers and the Lenders,
whereupon until the Administrative Agent notifies the Borrowers that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender to make its portion of such LIBOR Advances shall be
suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Lender to make, maintain or fund its portion of LIBOR
Advances, such Lender shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrowers. Before giving any notice to the Administrative Agent pursuant
to this Section 10.2, such Lender shall designate a different lending office if
such designation will avoid the need for giving such notice and will not, in the
sole reasonable judgment of such Lender, be otherwise materially disadvantageous
to such Lender. Upon receipt of such notice, notwithstanding anything contained
in Article 2 hereof, the Borrowers shall repay in full the then outstanding
principal amount of such Lender's portion of each affected LIBOR Advance,
together with accrued interest thereon, on either (a) the last day of the then
current Interest Period applicable to such affected LIBOR Advances if such
Lender may lawfully continue to maintain and fund its portion of such LIBOR
Advance to such day or (b) immediately if such Lender may not lawfully continue
to fund and maintain its portion of such affected LIBOR Advances to such day.
Concurrently with repaying such portion of each affected LIBOR Advance, the
Borrowers may borrow a Base Rate Advance from such Lender, whether or not it
would have been entitled to effect such borrowing, and such Lender shall make
such Advance, if so requested, in an amount such that the outstanding principal
amount of the affected Note held by such Lender shall equal the outstanding
principal amount of such Note immediately prior to such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any Applicable Law, or
any change in any Applicable Law (whether adopted before or after the Agreement
Date), or any interpretation or change in interpretation or administration
thereof by any governmental
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authority, central bank or comparable agency charged with the interpretation or
administration thereof or compliance by any Lender with any directive (whether
or not having the force of law) of any such authority, central bank or
comparable agency:
(1) shall subject any Lender to any tax, duty or other charge
with respect to its obligation to make its portion of LIBOR Advances, or
its portion of other Advances, or shall change the basis of taxation of
payments to any Lender of the principal of or interest on its portion of
LIBOR Advances or in respect of any other amounts due under this Agreement,
or its obligation to make its portion of Advances (except for changes in
the rate or method of calculation of tax on the revenues or net income of
such Lender); or
(2) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System, but excluding any included in an applicable
Eurodollar Reserve Percentage), special deposit, capital adequacy,
assessment or other requirement or condition against assets of, deposits
with or for the account of, or commitments or credit extended by, any
Lender or shall impose on any Lender or the London interbank borrowing
market any other condition affecting its obligation to make its portion of
such LIBOR Advances or its portion of existing Advances;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Lender under this Agreement or
under its Note with respect thereto, then, within ten (10) days after demand by
such Lender, the Borrowers agree to pay to such Lender such additional amount or
amounts as will compensate such Lender on an after-tax basis for such increased
costs. All payments made by the Borrowers under this Agreement shall, as set
forth above, be made free and clear of, and without deduction or withholding for
or on account of, any present or future income, stamp, or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any governmental authority
excluding net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on any Lender as a result of present or former connection between
such Person 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 Person having executed, delivered
or performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document). If any such non-excluded taxes, levies,
imposts, duties, charges, fees, deductions or withholdings (collectively, the
"Non-Excluded Taxes") are required to be withheld from any amounts payable to
any Lender hereunder, the amounts so payable to such Person shall be increased
to the extent necessary to yield to such Person (after payment of all
Non-Excluded Taxes) interest on any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement; provided, however, that the
Borrowers shall not be required to increase any such amounts payable to any
Lender that is not organized under the laws of the United States of America or a
state thereof if such Person fails to comply with the requirements of Section
2.13 hereof. Whenever any Non-
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Excluded Taxes are payable by the Borrowers, as promptly as possible thereafter
the Borrowers shall send to the Administrative Agent for its own account or for
the account of such Lender, as the case may be, a certified copy of an original
official receipt received by the Borrowers showing payment thereof. If the
Borrowers fail to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other documentary evidence, the Borrowers shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties that may
become payable by the Administrative Agent or any Lender as result of any such
failure. The Borrowers shall make any payments required pursuant to the
immediately preceding sentence within thirty (30) days after receipt of written
demand therefor from the Administrative Agent or any Lender, as the case may be.
The agreements set forth in this Section 10.3 shall survive the termination of
this Agreement and the payment of the Obligations. Each Lender will promptly
notify the Borrowers and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 10.3 and will designate a different
lending office if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the sole reasonable judgment of such
Lender made in good faith, be otherwise disadvantageous to such Lender.
Notwithstanding any provision herein to the contrary, the Borrowers shall have
no obligation to pay to any Lender any amount which the Borrowers are liable to
withhold due to the failure of such Lender to file any statement of exemption
required under the Code.
(b) Any Lender claiming compensation under this Section 10.3 shall
provide the Borrowers with a written certificate setting forth the additional
amount or amounts to be paid to it hereunder and calculations therefor in
reasonable detail. Such certificate shall be presumptively correct absent
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods. If any Lender demands compensation under this
Section 10.3, the Borrowers may at any time, upon at least five (5) Business
Days' prior notice to such Lender, prepay in full such Lender's portion of the
then outstanding LIBOR Advances, together with accrued interest and fees thereon
to the date of prepayment, along with any reimbursement required under Section
2.10 hereof and this Section 10.3. Concurrently with prepaying such portion of
LIBOR Advances the Borrowers may, whether or not then entitled to make such
borrowing, borrow a Base Rate Advance, or a LIBOR Advance not so affected, from
such Lender, and such Lender shall, if so requested, make such Advance in an
amount such that the outstanding principal amount of the affected Note or Notes
held by such Lender shall equal the outstanding principal amount of such Note or
Notes immediately prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given pursuant to
Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any Lender to
make its portion of any type of LIBOR Advance, or requiring such Lender's
portion of LIBOR Advances to be repaid or prepaid, then, unless and until such
Lender notifies the Borrowers that the circumstances giving rise to such
repayment no longer apply, all amounts which would otherwise be made by such
Lender as its portion of LIBOR Advances shall be instead as Base Rate Advances,
unless otherwise notified by any of the Borrowers.
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ARTICLE 11 Miscellaneous
Section 11.1 Notices.
(a) Except as otherwise expressly provided herein, all notices and
other communications under this Agreement and the other Loan Documents (unless
otherwise specifically stated therein) shall be in writing and shall be deemed
to have been given three (3) Business Days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, or one (1)
Business Day after being entrusted to a reputable commercial overnight delivery
service for next day delivery, or when sent on a Business Day prior to 5:00 p.m.
(New York, New York time) by telecopy addressed to the party to which such
notice is directed at its address determined as provided in this Section 11.1.
All notices and other communications under this Agreement shall be given to the
parties hereto at the following addresses:
(i) If to the Borrowers, to them at:
American Towers, Inc.
American Tower, L.P.
Towersites Monitoring, Inc.
American Tower International, Inc.
American Tower LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer and General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Department
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
TD Securities (USA) Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Managing Director, Communications Finance
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to:
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Lenders, to them at the addresses set forth
beside their names as set forth in Schedule 7 attached hereto.
The failure to provide copies shall not affect the validity of the notice given
to the primary recipient.
(b) Any party hereto may change the address to which notices shall be
directed under this Section 11.1 by giving ten (10) days' written notice of such
change to the other parties.
Section 11.2 Expenses. The Borrowers will promptly pay, or reimburse, in
each case jointly and severally:
(a) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, and the transactions contemplated
hereunder and thereunder, including, without limitation, the reasonable fees and
disbursements of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Atlanta, Georgia,
special counsel for the Administrative Agent; and
(b) all reasonable out-of-pocket costs and expenses of the
Administrative Agent, the Lenders and the Issuing Bank of enforcement under this
Agreement or the other Loan Documents and all reasonable out-of-pocket costs and
expenses of collection if an Event of Default occurs in the payment of the
Notes, which in each case shall include, without limitation, reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent, each of the
Lenders and the Issuing Bank.
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Section 11.3 Waivers. The rights and remedies of the Administrative Agent,
the Lenders and the Issuing Bank under this Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative Agent, the
Majority Lenders, the Lenders and the Issuing Bank, or any of them, in
exercising any right, shall operate as a waiver of such right. The
Administrative Agent, the Lenders and the Issuing Bank expressly reserve the
right to require strict compliance with the terms of this Agreement in
connection with any future funding of a Request for Advance. In the event the
Lenders decide to fund a Request for Advance or the Issuing Bank to issue a
Letter of Credit at a time when the Borrowers are not in strict compliance with
the terms of this Agreement, such decision by the Lenders and the Issuing Bank,
respectively, shall not be deemed to constitute an undertaking by the Lenders to
fund any further Request for Advance or the Issuing Bank to issue any Letter of
Credit or preclude the Lenders, the Administrative Agent from exercising any
rights available under the Loan Documents or at law or equity. Any waiver or
indulgence granted by the Administrative Agent, the Lenders, the Majority
Lenders and the Issuing Bank, or any of them, shall not constitute a
modification of this Agreement or any other Loan Document, except to the extent
expressly provided in such waiver or indulgence, or constitute a course of
dealing at variance with the terms of this Agreement or any other Loan Document
such as to require further notice of their intent to require strict adherence to
the terms of this Agreement or any other Loan Document in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, the
Administrative Agent, each of the Lenders and the Issuing Bank are hereby
authorized by the Borrowers at any time or from time to time, without notice to
the Borrowers or to any other Person, any such notice being, to the extent
permitted by Applicable Law, hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, time or
demand, including, without limitation, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Lender, the Administrative Agent or the Issuing
Bank, to or for the credit or the account of the Borrowers or any Restricted
Subsidiary, against and on account of the obligations and liabilities of the
Borrowers to the Lenders, the Administrative Agent and the Issuing Bank,
including, without limitation, all Obligations and any other claims of any
nature or description arising out of or connected with this Agreement, the Notes
or any other Loan Document, irrespective of whether (a) any Lender, the
Administrative Agent or the Issuing Bank, as applicable shall have made any
demand hereunder or (b) any Lender, Administrative Agent or the Issuing Bank
shall have declared the principal of and interest on the Loans and other amounts
due hereunder to be due and payable as permitted by Section 8.2 hereof and
although such obligations and liabilities or any of them shall be contingent or
unmatured. Upon direction by the Administrative Agent, with the consent of all
of the Lenders, each Lender or the Issuing Bank holding deposits of any Borrower
or any Restricted Subsidiary shall exercise its set-off rights as so directed;
and, within one (1) Business Day following any such set-off, the Administrative
Agent shall give notice thereof to the Borrowers. Notwithstanding anything to
the contrary contained in this Section 11.4, no Lender nor the Issuing Bank
shall exercise any right of set-off without the prior consent of the Majority
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Lenders so long as the Obligations shall be secured by any real property or real
property interest, it being understood and agreed that the provisions of this
sentence are for the exclusive benefit of the Lenders and the Issuing Bank, may
be amended, modified or waived by the Majority Lenders without notice to or
consent of the Borrowers or any Subsidiary and shall not constitute a waiver of
any rights against the Borrowers or any Subsidiary or against any Collateral.
Section 11.5 Assignment and Participation.
(a) No Borrower may assign or transfer any of its rights or
obligations hereunder, under the Notes or under any other Loan Document without
the prior written consent of each Lender and the Issuing Bank.
(b) Each Lender may at any time sell assignments or participations of
up to one hundred percent (100%) of its interest hereunder to (A) one (1) or
more wholly-owned Affiliates of such Lender or Approved Funds (provided,
however, that if such Affiliate is not a financial institution, such Lender
shall be obligated to repurchase such assignment if such Affiliate is unable to
honor its obligations hereunder), (B) any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and any Operating Circular issued by such Federal Reserve Bank
(provided, however, that no such assignment shall relieve such Lender from its
obligations hereunder) or (C) any Lender.
(c) Each Lender may at any time sell assignments or participations to
one or more Persons pursuant to which each Lender may assign or participate its
interest under this Agreement and the other Loan Documents, including its
interest in any particular Advance or portion thereof; provided, however, that
(1) all assignments (other than assignments described in Section 11.5(b) hereof)
shall be in minimum principal amounts of the lesser of (X) $5,000,000.00 (unless
otherwise consented to by the Administrative Agent and, prior to the occurrence
and continuance of an Event of Default, the Borrower), and (Y) the amount
assigned of such Lender's Revolving Loan Commitment (in a single assignment
only), and (2) all assignments and participations (other than assignments and
participations described in Section 11.5(b) hereof) hereunder shall be subject
to the following additional terms and conditions:
(i) no assignment shall be sold without the prior consent of the
Administrative Agent and, prior to the occurrence and continuation of a
Default or Event of Default, the consent of the Borrowers, in each case,
which consent shall not be unreasonably withheld, delayed or conditioned;
(ii) any Person purchasing a participation or an assignment of
any portion of the Loans from any Lender shall be required to represent and
warrant that its purchase shall not constitute a "prohibited transaction"
(as defined in Section 4.1(m) hereof);
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(iii) the Borrowers, the Lenders, and the Administrative Agent
agree that assignments permitted hereunder (including the assignment of any
Advance or portion thereof) may be made with all voting rights, and shall
be made pursuant to an Assignment and Assumption Agreement substantially in
the form of Exhibit L attached hereto, and an administrative fee of
$3,500.00 shall be payable to the Administrative Agent either by the
assigning Lender or the assignee thereof at the time of any assignment
under this Section 11.5(c);
(iv) no participation agreement shall confer any rights under
this Agreement or any other Loan Document to any purchaser thereof, or
relieve any issuing Lender from any of its obligations under this
Agreement, and all actions hereunder shall be conducted as if no such
participation had been granted; provided, however, that any participation
agreement may confer on the participant the right to approve or disapprove
items requiring unanimous Lender consent pursuant to Section 11.12 hereof;
(v) each Lender agrees to provide the Administrative Agent and
the Borrowers with prompt written notice of any issuance of assignments of
its interests hereunder;
(vi) no assignment, participation or other transfer of any rights
hereunder or under the Notes shall be effected that would result in any
interest requiring registration under the Securities Act of 1933, as
amended, or qualification under any state securities law;
(vii) no such assignment may be made to any bank or other
financial institution (x) with respect to which a receiver or conservator
(including, without limitation, the Federal Deposit Insurance Corporation,
the Resolution Trust Company or the Office of Thrift Supervision) has been
appointed or (y) that is not "adequately capitalized" (as such term is
defined in Section 131(b)(1)(B) of the Federal Deposit Insurance
Corporation Improvement Act as in effect on the Agreement Date); and
(viii) if applicable, each Lender shall, and shall cause each of
its assignees to, provide to the Administrative Agent on or prior to the
effective date of any assignment an appropriate Internal Revenue Service
form as required by Applicable Law supporting such Lender's or assignee's
position that no withholding by any Borrower or the Administrative Agent
for United States income tax payable by such Lender or assignee in respect
of amounts received by it hereunder is required. For purposes of this
Agreement, an appropriate Internal Revenue Service form shall mean Internal
Revenue Service Form W-8BEN or W-8ECI, or any successor or related forms
adopted by the relevant United States taxing authorities.
(d) Except as specifically set forth in Section 11.5(b) or (c) hereof,
nothing in this Agreement or the Notes, expressed or implied, is intended to or
shall confer on any Person other than the respective parties hereto and thereto
and their successors and assignees permitted
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hereunder and thereunder any benefit or any legal or equitable right, remedy or
other claim under this Agreement or the Notes.
(e) In the case of any participation, all amounts payable by the
Borrowers under the Loan Documents shall be calculated and made in the manner
and to the parties hereto as if no such participation had been sold.
(f) The provisions of this Section 11.5 shall not apply to any
purchase of participations among the Lenders pursuant to Section 2.11 hereof.
(g) The Administrative Agent, acting, for this purpose only, as agent
of the Borrowers shall maintain, at no extra charge to the Borrowers, a register
(the "Register") at the address to which notices to the Administrative Agent are
to be sent under Section 11.1 hereof on which Register the Administrative Agent
shall enter the name, address and taxpayer identification number (if provided)
of the registered owner of the Loans evidenced by a Registered Note or, upon the
request of the registered owner, for which a Registered Note has been requested.
A Registered Note and the Loans evidenced thereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer of such Registered Note and the Loans evidenced thereby on the
Register. Any assignment or transfer of all or part of such Loans and the
Registered Note evidencing the same shall be registered on the Register only
upon compliance with the other provisions of this Section 11.5 and surrender for
registration of assignment or transfer of the Registered Note evidencing such
Loans, duly endorsed by (or accompanied by a written instrument of assignment or
transfer duly executed by) the Registered Noteholder thereof, and thereupon one
or more new Registered Notes in the same aggregate principal amount shall be
issued to the designated assignee(s) or transferee(s) and, if less than the
aggregate principal amount of such Registered Notes is thereby transferred, the
assignor or transferor. Prior to the due presentment for registration of
transfer of any Registered Note, the Borrowers and the Administrative Agent
shall treat the Person in whose name such Loans and the Registered Note
evidencing the same is registered as the owner thereof for the purpose of
receiving all payments thereon and for all other purposes, notwithstanding any
notice to the contrary.
(h) The Register shall be available for inspection by the Borrowers
and any Lender at any reasonable time during the Administrative Agent's regular
business hours upon reasonable prior notice.
(i) Notwithstanding any other provision in this Agreement, any Lender
that is a fund that invests in bank loans may, without the consent of the
Administrative Agent or the Borrowers, pledge all or any portion of its rights
under, and interest in, this Agreement and the Notes to any trustee or to any
other representative of holders of obligations owed or securities issued, by
such fund as security for such obligations or securities; provided, however,
that any transfer to any Person upon the enforcement of such pledge or security
interest may only be made subject to the assignment provisions of this Section
11.5.
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(j) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle (an
"SPC") sponsored by such Granting Lender, identified as such in writing from
time to time by the Granting Lender to the Administrative Agent and the
Borrowers, the option to provide to the Borrowers all or any part of any Advance
that such Granting Lender would otherwise be obligated to make to the Borrowers
pursuant to this Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to make any Advance and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
Advance, the Granting Lender shall be obligated to make such Advance pursuant to
the terms hereof. The Loans by an SPC hereunder shall be Revolving Loans, Term
Loan A Loans, and/or Term Loan B Loans of the Granting Lender to the same
extent, and as if, such Loans were made by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or similar
payment obligation under this Agreement (all liability for which shall remain
with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement)
that, prior to the date that is one year and one day after the payment in full
of all outstanding commercial paper or other senior indebtedness of any SPC, it,
solely in its capacity as a party hereto and to any other Loan Document, will
not institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under the laws of the United States or any State thereof. In
addition, notwithstanding anything to the contrary contained in this Section
11.5, any SPC may (i) with notice to, but without the prior written consent of,
the Borrowers and the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Advances to the
Granting Lender or to any financial institutions (consented to by the Borrowers
and the Administrative Agent) providing liquidity and/or credit support to or
for the account of such SPC to support the funding or maintenance of Advances
and (ii) disclose on a confidential basis any non-public information relating to
its Advances to any rating agency, commercial paper dealer or provider of any
surety, guarantee or credit or liquidity enhancement to such SPC. This Section
11.5(j) may not be amended without the written consent of any SPC which has been
designated in writing as provided in the first sentence hereof and holds any
outstanding Loans. The designation by a Granting Lender of an SPC to fund
Advances (i) shall be deemed to be a representation, warranty, covenant and
agreement by such Granting Lender to the Borrowers and all other parties
hereunder that (A) the funding and maintaining of such Advances by such SPC
shall not constitute a "prohibited transaction" (as defined in Section 4.1(m)
hereof), and (B) such designation, funding and maintenance would not result in
any interest requiring registration under the Securities Act of 1933, as
amended, or qualification under any state securities law, and shall from time to
time provide to the Borrowers the tax and other forms required pursuant to
Section 2.09(e) hereof with respect to such SPC as though such SPC were a Lender
hereunder. In no event shall the Borrowers or any Lender other than the Granting
Lender be obligated hereunder to pay any additional amounts under any provision
of this Agreement (pursuant to Article 10 hereof or otherwise) by reason of a
Granting Lender's designation of an SPC or the funding or maintenance of
Advances by such SPC, in excess of amounts which the Borrowers would have been
obligated to pay if such Granting Lender had not made such designation and such
Granting Lender were itself funding and maintaining such Advances. The
Administrative Agent shall register the interest of any SPC in an advance from
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time to time on the Register maintained pursuant to Section 11.5(g) hereof.
Section 11.6 Accounting Principles. All references in this Agreement to
GAAP shall be to such principles as in effect from time to time. All accounting
terms used herein without definition shall be used as defined under GAAP. All
references to the financial statements of the Borrowers and to their Annualized
Operating Cash Flow, Senior Debt, Operating Cash Flow, Total Debt, Fixed
Charges, Pro Forma Debt Service, Interest Expense, and other such terms shall be
deemed to refer to such items of the Borrowers and the Restricted Subsidiaries,
on a fully consolidated basis. The Borrowers shall deliver to the Lenders at the
same time as the delivery of any quarterly or annual financial statements
required pursuant to Section 6.1 or 6.2 hereof, as applicable, (a) a description
in reasonable detail of any material variation between the application of GAAP
employed in the preparation of such statements and the application of GAAP
employed in the preparation of the next preceding quarterly or annual financial
statements, as applicable, and (b) reasonable estimates of the differences
between such statements arising as a consequence thereof. If, within thirty (30)
days after the delivery of the quarterly or annual financial statements referred
to in the immediately preceding sentence, the Majority Lenders shall object in
writing to the Borrowers' determining compliance hereunder on such basis, (1)
calculations for the purposes of determining compliance hereunder shall be made
on a basis consistent with those used in the preparation of the latest financial
statements as to which such objection shall not have been made, or (2) if
requested by the Borrowers, the Majority Lenders will negotiate in good faith to
amend the covenants herein to give effect to the changes in GAAP in a manner
consistent with this Agreement (and so long as the Borrowers comply in good
faith with the provisions of this Section 11.6, no Default or Event of Default
shall occur hereunder solely as a result of such changes in GAAP).
Section 11.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be construed
in accordance with and governed by the internal laws of the State of New York
applicable to agreements made and to be performed the State of New York. If any
action or proceeding shall be brought by the Administrative Agent or any Lender
hereunder or under any other Loan Document in order to enforce any right or
remedy under this Agreement or under any Note or any other Loan Document, each
of the Borrowers hereby consents and will, and each of the Borrowers will cause
each Restricted Subsidiary to, submit to the jurisdiction of any state or
federal court of competent jurisdiction sitting within the area comprising the
Southern District of New York on the date of this Agreement. Each of the
Borrowers, for itself and on behalf of its Restricted Subsidiaries, hereby
agrees that, to the extent permitted by Applicable Law, service of the summons
and complaint and all other process which may be served in any such suit, action
or proceeding may be effected by mailing by registered mail a copy of such
process to the offices of the Borrowers at the address given in Section 11.1
hereof and that personal service of process shall not be required. Nothing
herein shall be construed to prohibit service of process by any other method
permitted by law, or the bringing of any suit, action or proceeding in any other
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jurisdiction. The Borrowers agree that final judgment in such suit, action or
proceeding shall be conclusive and may be enforced in any other jurisdiction by
suit on the judgment or in any other manner provided by Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable hereunder
or under the Notes exceed the maximum rate of interest allowed by Applicable
Law, and in the event any such payment is inadvertently made by the Borrowers or
inadvertently received by the Administrative Agent or any Lender, then such
excess sum shall be credited as a payment of principal, unless, if no Event of
Default shall have occurred and be continuing, the Borrowers shall notify the
Administrative Agent or such Lender, in writing, that it elects to have such
excess sum returned forthwith. It is the express intent hereof that the
Borrowers not pay and the Administrative Agent and the Lenders not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrowers under Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base Rate and the
LIBOR as reference rates for the determination of interest on the Loans, the
Lenders shall be under no obligation to obtain funds from any particular source
in order to charge interest to the Borrowers at interest rates related to such
reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents and the
headings of the various subdivisions used in this Agreement are for convenience
only and shall not in any way modify or amend any of the terms or provisions
hereof, nor be used in connection with the interpretation of any provision
hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any Loan
Document nor any term hereof or thereof may be amended orally, nor may any
provision hereof or thereof be waived orally but only by an instrument in
writing signed by or at the written direction of the Majority Lenders and, in
the case of an amendment, by the Borrowers, except that in the event of (a) any
increase in the amount of any Lender's portion of the Commitments or Commitment
Ratios or any reduction or postponement of the reductions to the Revolving Loan
Commitments set forth in Section 2.5(a) hereof, (b) any reduction (without a
corresponding payment) or postponement of the repayments of the principal amount
of the Loans provided in Section 2.7(b)(i) hereof, (c) any reduction or
postponement in interest or fees due hereunder of the payment thereof without a
corresponding payment of such interest or fee amount by the Borrowers, (d) any
release of any material portion of the Collateral for the Loans, except as
otherwise provided in Section 7.4 hereof, (e) any waiver of any Default due to
the failure by the
-101-
Borrowers to pay any sum due to any of the Lenders hereunder, (f) any release of
any material Guarantor to a Guaranty of all or any portion of the Obligations,
except in connection with a merger, sale or other disposition otherwise
permitted hereunder (in which case, such release shall require no further
approval by the Lenders), (g) any amendment to the pro rata treatment of the
Lenders set forth in Section 2.11 hereof, (h) any amendment of this Section
11.12, of the definition of Majority Lenders, or of any Section herein to the
extent that such Section requires action by all Lenders or the Issuing Bank, or
(i) subordinate the Loans in full to any of the Indebtedness, any amendment or
waiver or consent may be made only by an instrument in writing signed by each of
the Lenders or the Issuing Bank, respectively, and, in the case of an amendment,
by the Borrowers. Any amendment to any provision hereunder governing the rights,
obligations, or liabilities of the Administrative Agent in its capacity as such,
may be made only by an instrument in writing signed by such affected Person and
by each of the Lenders.
Section 11.13 Entire Agreement. Except as otherwise expressly provided
herein, this Agreement, the other Loan Documents and the other documents
described or contemplated herein or therein will embody the entire agreement and
understanding among the parties hereto and thereto and supersede all prior
agreements and understandings relating to the subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Lender to enter into or maintain business
relationships with any Borrower or any Affiliate thereof beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this Agreement
refers to any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto shall (a) be deemed to have been
relied upon by the Administrative Agent, each of the Lenders and the Issuing
Bank notwithstanding any investigation heretofore or hereafter made by them and
(b) survive the execution and delivery of the Notes and shall continue in full
force and effect so long as any Note is outstanding and unpaid. Any right to
indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.10, 2.12, 5.11, 10.3 and 11.2 hereof, shall survive the termination
of this Agreement and the payment and performance of all Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the Security
Documents and are intended by the parties hereto to be in parity with the
Interest Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrowers which by its terms purports to be subordinated to
all senior debt of the Borrowers.
-102-
Section 11.18 Obligations. The obligations of the Administrative Agent,
each of the Lenders and the Issuing Bank hereunder are several, not joint.
Section 11.19 Confidentiality. The Administrative Agent, the Lenders and
the Issuing Bank shall hold all non-public, proprietary or confidential
information (which has been identified as such by the Borrowers) obtained
pursuant to the requirements of this Agreement in accordance with their
customary procedures for handling confidential information of this nature and in
accordance with safe and sound lending practices; provided, however, that the
Administrative Agent, the Lenders and the Issuing Bank may make disclosure of
any such information (a) to their examiners, Affiliates, any Approved Fund,
outside auditors, counsel, consultants, appraisers, other professional advisors
and any direct or indirect contractual counterparty in swap agreements or such
counterparty's professional advisor in connection with this Agreement or as
reasonably required by any proposed syndicate member or any proposed transferee
or participant in connection with the contemplated transfer of any Note or
participation therein, in each case, so long as any such Person (other than any
examiners) receiving such information is advised of the provisions of this
Section 11.19 and agrees to be bound thereby, (b) as required or requested by
any governmental authority or self-regulatory body or representative thereof or
`in' connection with the enforcement hereof or of any Loan Document or related
document or (c) pursuant to legal process or with respect to any litigation
between or among any Borrower and any of the Administrative Agent, the Lenders
or the Issuing Bank. In no event shall the Administrative Agent, any Lender or
the Issuing Bank be obligated or required to return any materials furnished to
it by the Borrowers. The foregoing provisions shall not apply to the
Administrative Agent, a Lender or the Issuing Bank with respect to information
that (i) is or becomes generally available to the public (other than through the
Administrative Agent, such Lender or the Issuing Bank), (ii) is already in the
possession of the Administrative Agent, such Lender or the Issuing Bank on a
nonconfidential basis, or (iii) comes into the possession of the Administrative
Agent, such Lender or the Issuing Bank in a manner not known to the
Administrative Agent, such Lender or the Issuing Bank to involve a breach of a
duty of confidentiality owing to the Borrowers.
Section 11.20 Verestar Entities. Each of the parties hereto hereby
acknowledges and agrees that Sections 2, 3 and 4 of the Seventh Amendment to the
Prior Loan Agreement remain in full force and effect and that this Agreement
does not amend, restate, replace, substitute or modify such provisions.
Section 11.21 Guarantors. To the extent any Borrower has not directly
received the proceeds of all Advances hereunder and prior to the Agreement Date
under the Prior Loan Agreement, such Borrower may be deemed to be a guarantor
with respect to such Advances rather than a joint and several co-obligor and,
accordingly, each party hereto agrees that the liability of such Borrower as a
guarantor hereunder would be solely in accordance with, and subject to the
limitations contained in, the Borrower Guaranty executed by such Borrower in
favor of the Administrative Agent and the Lenders.
-103-
ARTICLE 12 Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. EACH OF THE BORROWERS, FOR ITSELF AND ON
BEHALF OF THE RESTRICTED SUBSIDIARIES, AND THE ADMINISTRATIVE AGENT, THE ISSUING
BANK AND THE LENDERS, HEREBY AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE AND
HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR
PROCEEDING OF ANY TYPE IN WHICH THE BORROWERS, ANY RESTRICTED SUBSIDIARIES, ANY
OF THE LENDERS, THE ADMINISTRATIVE AGENT, THE ISSUING BANK, OR ANY OF THEIR
RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS
ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE
OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION
12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY
RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS
SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (A) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF
THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY
LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE
BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-104-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWERS: AMERICAN TOWER, L.P., a Delaware limited
partnership
By ATC GP INC., its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Chief Financial Officer
---------------------------------------
AMERICAN TOWERS, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Chief Financial Officer
---------------------------------------
TOWERSITES MONITORING, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Chief Financial Officer
---------------------------------------
AMERICAN TOWER INTERNATIONAL, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Chief Financial Officer
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
AMERICAN TOWER LLC, a Delaware limited liability
company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Chief Financial Officer
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ADMINISTRATIVE AGENT TORONTO DOMINION (TEXAS), INC., as Administrative
AND LENDERS: Agent and as a Lender
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Vice President
----------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ADDISON CDO, LIMITED (#1279), as a Lender
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice President
---------------------------------------
ATHENA CDO, LIMITED (#1277), as a Lender
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice President
---------------------------------------
BEDFORD CDO, LIMITED, as a Lender
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Director
---------------------------------------
CAPTIVA III FINANCE LTD. (Acct 275), as a Lender
As advised by Pacific Investment Management
Company, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Title: Director
---------------------------------------
CAPTIVA IV FINANCE LTD. (Acct 1275), as a Lender
As advised by Pacific Investment Management
Company, LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Title: Director
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
JISSEKIKUN FUNDING, LTD. (#1288), as a Lender
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice President
---------------------------------------
ROYALTON COMPANY (#280), as a Lender
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice President
---------------------------------------
SEQUILS-MAGNUM, LTD (#1280), as a Lender
By: Pacific Investment Management Company, LLC,
as its Investment Advisor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
AERIES FINANCE-II, LTD., as a Lender
By: INVESCO Senior Secured Management, Inc.,
as Sub-Managing Agent
By:__________________________________________
Name:________________________________________
Title:_______________________________________
AIM FLOATING RATE FUND, as a Lender
By: INVESCO Senior Secured Management, Inc.,
As Attorney in fact
By:__________________________________________
Name:________________________________________
Title:_______________________________________
AMARA-1 FINANCE, LTD., as a Lender
By: INVESCO Senior Secured Management, Inc. As
Financial Manager
By:__________________________________________
Name:________________________________________
Title:_______________________________________
AMARA 2 FINANCE, LTD., as a Lender
By: INVESCO Senior Secured Management, Inc.,
As Financial Manager
By:__________________________________________
Name:________________________________________
Title:_______________________________________
AVALON CAPITAL LTD., as a Lender
By: INVESCO Senior Secured Management, Inc.,
as Portfolio Advisor
By:__________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
AVALON CAPITAL LTD. 2, as a Lender
By: INVESCO Senior Secured Management, Inc.,
as Portfolio Advisor
By:__________________________________________
Name:________________________________________
Title:_______________________________________
CERES II FINANCE LTD., as a Lender
By: INVESCO Senior Secured Management, Inc.,
as Sub-Managing Agent (Financial)
By:__________________________________________
Name:________________________________________
Title:_______________________________________
CHARTER VIEW PORTFOLIO, as a Lender
By: INVESCO Senior Secured Management, Inc.,
as Investment Advisor
By:__________________________________________
Name:________________________________________
Title:_______________________________________
DIVERSIFIED CREDIT PORTFOLIO LTD., as a Lender
By: INVESCO Senior Secured Management, Inc.,
as Investment Advisor
By:__________________________________________
Name:________________________________________
Title:_______________________________________
INVESCO EUROPEAN CDO I S.A., as a Lender
By: INVESCO Senior Secured Management, Inc. as
Collateral Manager
By:__________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
SEQUILS-LIBERTY, LTD., as a Lender
By: INVESCO Senior Secured Management, Inc., as
Collateral Manager
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
TRITON CDO IV, LIMITED, as a Lender
By: INVESCO Senior Secured Management, Inc., as
Investment Advisor
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
AIMCO CDO SERIES 2000-A, as a Lender
By: /s/ ▇▇▇▇▇ Goezgen
---------------------------------------------
Name: ▇▇▇▇▇ Goezgen
----------------------------------------
Title: Authorized Signatory
---------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Authorized Signatory
---------------------------------------
AIMCO CLO, SERIES 2001-A, as a Lender
By: /s/ ▇▇▇▇▇ Goezgen
---------------------------------------------
Name: ▇▇▇▇▇ Goezgen
----------------------------------------
Title: Authorized Signatory
---------------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Authorized Signatory
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ALLFIRST BANK, as a Lender
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ALPHA U.S. SUBFUND II, LLC, as a Lender
By: GoldenTree Asset Management, LLP
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title:_______________________________________
GKW UNIFIED HOLDINGS, LLC, as a Lender
By: GoldenTree Asset Management, LLP
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
APEX (TRIMARAN) CDO I, LTD., as a Lender
By: Trimaran Advisors, L.L.C.
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ARCHIMEDES FUNDING, L.L.C., as a Lender
By: ING Capital Advisors LLC, as Collateral
Manager
By:______________________________________________
Name:_________________________________________
Title:________________________________________
ARCHIMEDES FUNDING II, LTD., as a Lender
By: ING Capital Advisors LLC, as Collateral
Manager
By:______________________________________________
Name:_________________________________________
Title:________________________________________
ARCHIMEDES FUNDING III, LTD., as a Lender
By: ING Capital Advisors LLC, as Collateral
Manager
By:______________________________________________
Name:_________________________________________
Title:________________________________________
ARCHIMEDES FUNDING IV (CAYMAN), LTD., as a Lender
By: ING Capital Advisors LLC, as Collateral
Manager
By:______________________________________________
Name:_________________________________________
Title:________________________________________
BALANCED HIGH YIELD FUND I, LTD., as a Lender
By: ING Capital Advisors LLC, as Asset Manager
By:______________________________________________
Name:_________________________________________
Title:________________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BALANCED HIGH YIELD FUND II, LTD., as a Lender
By: ING Capital Advisors LLC, as Asset Manager
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
ENDURANCE CLO I, LTD., as a Lender
c/o: ING Capital Advisors LLC, as Collateral
Manager
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
ING-ORYX CLO, LTD., as a Lender
By: ING Capital Advisors LLC, as Collateral
Manager
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
NEMEAN CLO, LTD., as a Lender
By: ING Capital Advisors LLC, as Investment
Manager
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SEQUILS-ING I (HBDGM), LTD., as a Lender
By: ING Capital Advisors LLC, as Collateral
Manager
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ARES III CLO Ltd.
By: ARES CLO Management LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BALLYROCK CDO I LIMITED, as a Lender
By:_______________________________
Name:__________________________
Title:_________________________
FIDELITY ADVISOR SERIES II: FIDELITY ADVISOR
FLOATING RATE HIGH INCOME FUND, as a Lender
By:_______________________________
Name:__________________________
Title:_________________________
FIDELITY DEVONSHIRE TRUST: FIDELITY EQUITY-
INCOME FUND, as a Lender
By:_______________________________
Name:__________________________
Title:_________________________
FIDELITY FIXED INCOME TRUST: FIDELITY HIGH
INCOME FUND, as a Lender
By:_______________________________
Name:__________________________
Title:_________________________
VARIABLE INSURANCE PRODUCTS FUND III:
BALANCED PORTFOLIO, as a Lender
By:_______________________________
Name:__________________________
Title:_________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
VARIABLE INSURANCE PRODUCTS FUND: EQUITY-INCOME
PORTFOLIO, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BANK OF AMERICA, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇▇ Honey
---------------------------------------------
Name: ▇▇▇▇▇▇▇ Honey
----------------------------------------
Title: Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BANK OF MONTREAL, as a Lender
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Director
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BANKNORTH, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Assistant Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BANK OF SCOTLAND, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: First Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BLACKROCK SENIOR LOAN TRUST, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
MAGNETITE ASSET INVESTORS, LLC, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
MAGNETITE ASSET INVESTORS III, LLC, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
TITANIUM CBO I, LTD., as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BAVARIA TRR CORPORATION, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK
BRANCH, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BEAR ▇▇▇▇▇▇▇ & CO. INC., as a LENDER
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Senior Managing Director
---------------------------------------
BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Authorized Agent
---------------------------------------
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS INC., as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Senior Managing Director
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BOSTON INCOME PORTFOLIO, as a Lender
By: Boston Management and Research as
Investment Advisor
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
DIVERSIFIED INVESTORS HIGH YIELD BOND FUND, as a
Lender
By: Boston Management and Research as
Investment Advisor,
By:__________________________________________
Name:________________________________________
Title:_______________________________________
▇▇▇▇▇ ▇▇▇▇▇ CDO II, LTD., as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment
Advisor
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
▇▇▇▇▇ ▇▇▇▇▇ CDO III, LTD., as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment
Advisor
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
▇▇▇▇▇ ▇▇▇▇▇ INSTITUTIONAL SENIOR LOAN FUND,
as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment
Advisor
By:__________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST, as a Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment
Advisor
By:__________________________________________
Name:________________________________________
Title:_______________________________________
▇▇▇▇▇▇▇ & CO, as a Lender
By: Boston Management and Research, as
Investment Advisor
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
HIGH INCOME PORTFOLIO, as a Lender
By: Boston Management and Research, as
Investment Advisor
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, as
Investment Advisor
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CASTLE HILL I-INGOTS, LTD., as a Lender
By: Sankaty Advisors, LLC as Collateral Manager
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
CASTLE HILL II-INGOTS, LTD., as a Lender
By: Sankaty Advisors, LLC as Collateral Manager
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SANKATY ADVISORS, INC., as Collateral Manager
for ▇▇▇▇▇ POINT CBO 1999-1, LTD., as Term Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SANKATY ADVISORS, LLC, as Collateral Manager for
▇▇▇▇▇ POINT II CBO 2000-1, LTD., as Term Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SANKATY ADVISORS, INC., as Collateral Manager
for GREAT POINT CLO 1998-1 LTD., as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
SANKATY ADVISORS, LLC, as Collateral Manager for
GREAT POINT CLO 1999-1 LTD., as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SANKATY ADVISORS, LLC, as Collateral Manager for
RACE POINT CLO, LIMITED, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SANKATY HIGH YIELD ASSET PARTNERS II, L.P., as a
Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SANKATY HIGH YIELD PARTNERS III, L.P., as a
Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
BRYN MAWR CLO, LTD., as a Lender
By: Deerfield Capital Management LLC, as its
Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Sr. Vice President
---------------------------------------
ROSEMONT CLO, LTD., as a Lender
By: Deerfield Capital Management LLC, as its
Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Sr. Vice President
---------------------------------------
SEQUILS-CUMBERLAND I, LTD., as a Lender
By: Deerfield Capital Management LLC, as its
Collateral Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Sr. Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CALLIDUS DEBT PARTNERS CDO FUND I, LTD.,
as a Lender
By: Callidus Capital Management, LLC, its
Collateral Manager
By:______________________________________
Name:_________________________________
Title:________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CARLYLE HIGH YIELD PARTNERS II, LTD.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Title: Principal
-------------------------------
CARLYLE HIGH YIELD PARTNERS III, LTD.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Title: Principal
-------------------------------
CARLYLE HIGH YIELD PARTNERS IV, LTD.,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
--------------------------------
Title: Principal
-------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ARIEL CBO, as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director - Operations
-----------------------------------
▇▇▇▇▇▇▇ CBO LIMITED, as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director - Operations
-----------------------------------
CEDAR CBO, LIMITED, as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director - Operations
-----------------------------------
CENTURION CDO II, LTD., as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director - Operations
-----------------------------------
CENTURION CDO III, LIMITED, as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director - Operations
-----------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CENTURION CDO VI, LIMITED, as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Director - Operations
------------------------------------
CLARION CBO LIMITED, as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Director - Operations
------------------------------------
ISLES CBO LIMITED, as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Director - Operations
------------------------------------
SEQUILS - CENTURION V, LTD., as a Lender
By: American Express Asset Management Group
Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Director - Operations
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CITADEL HILL 2000 LTD., as a Lender
By:________________________________________
Name:___________________________________
Title:__________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CITIZENS BANK OF MASSACHUSETTS, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
------------------------------------
Title: Senior Vice President
-----------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CLYDESDALE CLO 2001-1, LTD., as a Lender
By: Nomura Corporate Research and Asset
Management, Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Director
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
COBANK, ACB, as a Lender
By:
-----------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CONTINENTAL ASSURANCE COMPANY on behalf of
its Separate Account (E), as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CONTINENTAL CASUALTY COMPANY, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Executive Director
-----------------------------------
By: /s/ ▇▇▇ ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Managing Director
---------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CREDIT SUISSE FIRST BOSTON, as a Lender
By: /s/ SoVonna Day-▇▇▇▇▇
--------------------------------------
Name: SoVonna Day-▇▇▇▇▇
------------------------------
Title: Vice President
------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Associate
--------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CSAM FUNDING II, as a Lender
By:_____________________________________
Name:________________________________
Title:_______________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
CYPRESSTREE INVESTMENT PARTNERS I, LTD., as a
Lender
By: CypressTree Investment Management Company, Inc.,
as Portfolio Manager
By:_________________________________________________
Name:___________________________________________
Title:__________________________________________
CYPRESSTREE INVESTMENT PARTNERS II, LTD., as a
Lender
By: CypressTree Investment Management Company, Inc.,
as Portfolio Manager
By:_________________________________________________
Name:___________________________________________
Title:__________________________________________
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
as a Lender
By:_________________________________________________
Name:___________________________________________
Title:__________________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
MASTER SENIOR FLOATING RATE TRUST, as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
DEBT STRATEGIES FUND, INC., as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
LONGHORN CDO (CAYMAN) LTD., as Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, as
Investment Advisor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
LONGHORN CDO II, LTD., as Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, L.P., as
Investment Advisor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO, as Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, L.P., as
Investment Advisor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Title: Authorized Signatory
----------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT SERIES:
INCOME STRATEGIES PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, L.P., as
Investment Advisor, as Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Title: Authorized Signatory
--------------------------------------------
SENIOR HIGH INCOME PORTFOLIO, INC., as a Lender
By:______________________________________
Name:_________________________________
Title:________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title: Director
------------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
DEUTSCHE BANK TRUST COMPANY AMERICAS
f/k/a BANKERS TRUST COMPANY, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
DEXIA CREDIT LOCAL, as a Lender
By:_____________________________________
Name:_______________________________
Title:______________________________
By:_____________________________________
Name:_______________________________
Title:______________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ELC (CAYMAN) LTD., as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as
Collateral Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, CFA
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, CFA
-------------------------------------
Title: Managing Director
-------------------------------------
ELC (CAYMAN) LTD. 1999-II, as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc., as
Collateral Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, CFA
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, CFA
-------------------------------------
Title: Managing Director
-------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ELF FUNDING TRUST III, as a Lender
By: New York Life Investment Management,
LLC, as attorney-in-fact
By: /s/ ▇. ▇. ▇▇▇▇
------------------------------------------
Name: ▇. ▇. ▇▇▇▇
-------------------------------------
Title: VP
-------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG,
as a Lender
By: /s/ ▇▇▇▇ ▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇
-------------------------------------
Title: Vice President
-------------------------------------
Erste Bank New York ▇▇▇▇▇
-------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
-------------------------------------
Erste Bank New York ▇▇▇▇▇
-------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
FC-CBO III LIMITED, as a Lender
By:
__________________________________________
Name:
_____________________________________
Title:
_____________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
FIRST DOMINION FUNDING III, as a Lender
By:
__________________________________________
Name:
_____________________________________
Title:
_____________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
FLEET NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: S.V.P. Authorized Officer
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
FORTIS CAPITAL CORP., as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Executive Vice President
------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Assistant Vice President
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
GALAXY CLO 1999-1, LTD., as a Lender
By: SAI Investment Adviser, Inc., its
Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Managing Director
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
GE CAPITAL CFE, INC., as a Lender
By:
________________________________
Name:
__________________________
Title:
__________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Operations-Manager
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
GOLDENTREE HIGH YIELD MASTER FUND LTD,
as a Lender
By: GoldenTree Asset Management, L.P.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title:________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
HARBOUR TOWN FUNDING TRUST, as a Lender
By:
______________________________________
Name:
_________________________________
Title:
_________________________________
JUPITER FUNDING TRUST, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
---------------------------------
MUIRFIELD TRADING LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
---------------------------------
OLYMPIC FUNDING TRUST, SERIES 1999-1, as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
---------------------------------
PPM SPYGLASS FUNDING TRUST, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
---------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
STANWICH LOAN FUNDING LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice President
---------------------------------
WINGED FOOT FUNDING TRUST, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Authorized Agent
---------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
HARBOURVIEW CDO II, LTD., as a Lender
By:
_______________________________________
Name:
_________________________________
Title:
_________________________________
HARBOURVIEW CDO IV, LTD., as a Lender
By:
_______________________________________
Name:
_________________________________
Title:
_________________________________
▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING RATE FUND, as a
Lender
By:
_______________________________________
Name:
_________________________________
Title:
_________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
IBM CREDIT CORPORATION, as a Lender
By:
_______________________________________
Name:
_________________________________
Title:
_________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ING PRIME RATE TRUST, as a Lender
By: ING Investments, LLC, as its
investment manager
By: /s/ ▇▇▇▇ Balkar
------------------------------------
Name: ▇▇▇▇ Balkar
-------------------------------
Title: Senior V.P.-Co Senior
Portfolio Manager
-------------------------------
ING SENIOR INCOME FUND, as a Lender
By: ING Investments, LLC, as its
investment manager
By: /s/ ▇▇▇▇ Balkar
------------------------------------
Name: ▇▇▇▇ Balkar
-------------------------------
Title: Senior V.P.- Co Senior
Portfolio Manager
-------------------------------
ML CLO XV PILGRIM AMERICA (CAYMAN) LTD.,
as a Lender
By: ING Investments, LLC, as its
investment manager
By: /s/ ▇▇▇▇ Balkar
------------------------------------
Name: ▇▇▇▇ Balkar
-------------------------------
Title: Senior V.P.- Co Senior
Portfolio Manager
-------------------------------
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.,
as a Lender
By: ING Investments, LLC, as its
investment manager
By: /s/ ▇▇▇▇ Balkar
------------------------------------
Name: ▇▇▇▇ Balkar
-------------------------------
Title: Senior V.P.- Co Senior
Portfolio Manager
-------------------------------
PILGRIM CLO 1999-1 LTD., as a Lender
By: ING Investments, LLC, as its
investment manager
By: /s/ ▇▇▇▇ Balkar
------------------------------------
Name: ▇▇▇▇
-------------------------------
Title: Senior V.P.- Co Senior
Portfolio Manager
-------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
SEQUILS-PILGRIM I, LTD., as a Lender
By: ING Investments, LLC, as its
investment manager
By: /s/ ▇▇▇▇ Balkar
------------------------------------
Name: ▇▇▇▇ Balkar
-------------------------------
Title: Senior V.P.- Co Senior
Portfolio Manager
-------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
JPMORGAN CHASE BANK, as a Lender
By:
___________________________________________
Name:
_____________________________________
Title:
_____________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
KEY CORPORATE CAPITAL INC., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
-----------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
KZH CYPRESSTREE-1 LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
---------------------------------------
Title: Authorized Agent
---------------------------------------
KZH ING-2 LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
---------------------------------------
Title: Authorized Agent
---------------------------------------
KZH ING-3 LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
---------------------------------------
Title: Authorized Agent
---------------------------------------
KZH RIVERSIDE LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
---------------------------------------
Title: Authorized Agent
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
KZH SOLEIL LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
----------------------------------------------
Title: Authorized Agent
---------------------------------------------
KZH SOLEIL-2 LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
----------------------------------------------
Title: Authorized Agent
---------------------------------------------
KZH STERLING LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
---------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
----------------------------------------------
Title: Authorized Agent
---------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
LANDMARK CDO LIMITED, as a Lender
By: Aladdin Asset Management LLC, as Manager
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
LCM I LIMITED PARTNERSHIP, as a Lender
By: Lyon Capital Management LLC, as Attorney in Fact
By: /s/ Farboud Tavanger
------------------------------------------------------
Name: Farboud Tavanger
-------------------------------------------------
Title: Senior Portfolio Manager
------------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
▇▇▇▇▇▇ COMMERCIAL PAPER, as a Lender
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------------------
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------------
Title: Authorized Signatory
------------------------------------------------------
SYNDICATED LOAN FUNDING TRUST, as a Lender
By: ▇▇▇▇▇▇ Commercial Paper, Inc.,
Not in its individual capacity but solely as Asset Manager
By: /s/ G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------------------------
Name: G. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------------
Title: Authorized Signatory
------------------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
MADISON AVENUE CDO I, LTD, as a Lender
By: Metropolitan Life Insurance Company, as
Collateral Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Title: Director
------------------------------------------------
MADISON AVENUE CDO III, LTD, as a Lender
By: Metropolitan Life Insurance Company, as
Collateral Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Title: Director
------------------------------------------------
METROPOLITAN LIFE INSURANCE COMPANY,
as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Title: Director
------------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
MIZUHO CORPORATE BANK, LTD., as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME INCOME TRUST, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
MOUNTAIN CAPITAL CLO I, LTD., as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
MOUNTAIN CAPITAL CLO II, LTD., as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
NATEXIS BANQUES POPULAIRES, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Title: VP Group Manager
---------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
NATIONAL CITY BANK, as a Lender
By:_____________________________________________
Name:________________________________________
Title:_______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
NIB CAPITAL BANK N.V., as a Lender
By: /s/ ▇▇▇▇▇ ▇. Th. Spanjaard
----------------------------------------------------
Name: ▇▇▇▇▇ ▇. Th. Spanjaard
-----------------------------------------------
Title: Head Special Credits
----------------------------------------------
By: /s/ N. Vroan
----------------------------------------------------
Name: N. Vroan
-----------------------------------------------
Title: Special Credits
----------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
OCTAGON INVESTMENT PARTNERS II, LLC, as a Lender
By: Octagon Credit Investors, LLC, as sub-investment
manager
By:________________________________________________________
Name:__________________________________________________
Title:_________________________________________________
OCTAGON INVESTMENT PARTNERS III, LTD., as a Lender
By: Octagon Credit Investors, LLC, as Portfolio Manager
By:________________________________________________________
Name:__________________________________________________
Title:_________________________________________________
OCTAGON INVESTMENT PARTNERS IV, LTD., as a Lender
By: Octagon Credit Investors, LLC, as Collateral Manager
By:________________________________________________________
Name:__________________________________________________
Title:_________________________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
PACIFICA PARTNERS I, L.P., as a Lender
By: Imperial Credit Asset Management, as its Investment
Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
Title: Vice President
-------------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
PRESIDENT & FELLOWS OF HARVARD COLLEGE, as a Lender
By: Regiment Capital Management, LLC, as its Investment
Advisor
By: Regiment Capital Advisors, LLC, its Manager and
pursuant to delegated authority
By:________________________________________________________
Name:__________________________________________________
Title:_________________________________________________
REGIMENT CAPITAL LTD. as a Lender
By: Regiment Capital Management, LLC, as its Investment
Advisor
By: Regiment Capital Advisors, LLC, its Manager and
pursuant to delegated authority
By:________________________________________________________
Name:_________________________________________________
Title:________________________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ROBECO CDO II, LTD., as a Lender
By:________________________________________________________
Name:___________________________________________________
Title:__________________________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
ROYAL BANK OF CANADA, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Senior Manager
------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
SEABOARD CLO 2000 LTD, as a Lender
By: _________________________________________
Name: ____________________________________
Title: ___________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
SENECA CBO II, L.P., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: ___________________________________
SENECA CBO III, LIMITED, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: ___________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
SIERRA CLO I, LTD., as a Lender
By: Centre Pacific LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: Chief Operating Officer
-------------------------------------
Centre Pacific LLP (Manager)
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Title: Vice President
-------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
TEXTRON FINANCIAL CORPORATION, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
---------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
THE BANK OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President
-----------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: P.A. ▇▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Authorized Signatory
-----------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
THE CIT GROUP/EQUIPMENT FINANCING, INC., as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Title: Vice President
-----------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
TRS ECLIPSE LLC, as a Lender
By:_______________________________________________
Name: _________________________________________
Title: ________________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Title: Senior Vice President
------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED, as a Lender
By: ▇▇▇ ▇▇▇▇▇▇ Management, Inc., as Collateral Manager
By:___________________________________________________
Name: _____________________________________________
Title: ____________________________________________
▇▇▇ ▇▇▇▇▇▇ CLO II, LIMITED, as a Lender
By: ▇▇▇ ▇▇▇▇▇▇ Management, Inc., as Collateral Manager
By:___________________________________________________
Name: _____________________________________________
Title: ____________________________________________
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST, as a Lender
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory Corp.
By:___________________________________________________
Name: _____________________________________________
Title: ____________________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
WACHOVIA BANK, N. A., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Title: Director
----------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
WASHINGTON MUTUAL BANK, as a Lender
By:_____________________________________________
Name: _______________________________________
Title: ______________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
▇▇▇▇▇▇▇ BANK, as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Title: Vice President
---------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Signature Page
EXHIBIT A
REQUEST FOR ADVANCE
AMERICAN TOWERS, INC., a Delaware corporation ("AT Inc."), TOWERSITES
MONITORING, INC., a Delaware corporation ("Towersites"), AMERICAN TOWER
INTERNATIONAL, INC., a Delaware corporation ("AT International"), AMERICAN TOWER
LLC, a Delaware limited liability company ("AT LLC") and AMERICAN TOWER, L.P., a
Delaware limited partnership (collectively, with AT Inc., Towersites, AT
International and AT LLC, the "Borrowers"), in connection with that certain
Second Amended and Restated Loan Agreement (as amended, modified, restated or
supplemented from time to time, and as in effect on the date hereof, the "Loan
Agreement"), dated February 21, 2003, among the Borrowers, the Lenders (as
defined therein), the Issuing Bank (as defined therein) and Toronto-Dominion
(Texas), Inc., as administrative agent (the "Administrative Agent"), each acting
through its Authorized Signatory, hereby certify to each of the foregoing
Persons other than the Borrowers that:
1. [With respect to Advances] The Borrowers hereby request an Advance in
the aggregate amount of ______________________________ AND ___/100 DOLLARS
($___________) to be made on ____________ __, _____, which is a Business Day,
under the Revolving Loan Commitment. Such Advance shall be a [Base
Rate/Advance/LIBOR Advance maturing on __________, _______]. The proceeds of the
Advance should be wired as set forth on Schedule 1 attached hereto. The
foregoing instructions shall be irrevocable.
[With respect to Continuations and Conversions] The Borrowers hereby
request that the [LIBOR Advance maturing on __________ ___, ____/Base Rate
Advance] in an aggregate amount of ______________________________ AND ___/100
DOLLARS ($__________) be [Continued as a LIBOR/Converted to a Base Rate/LIBOR]
Advance in an aggregate amount of _______________ AND ___/100 DOLLARS
($____________).
2. [With respect to Advances] All of the representations and warranties
of the Borrowers made under the Loan Agreement and the other Loan Documents
(including, without limitation, all representations and warranties with respect
to the Restricted Subsidiaries) which, pursuant to Section 4.2 of the Loan
Agreement are made at and as of the date of such Advance, are true and correct
in all material aspects both before and after giving effect to the application
of the proceeds of the Advance of the Loans in connection with which this
Request for Advance is given, and after giving effect to any updates to
information provided to the Lenders in accordance with the terms of the Loan
Agreement.
3. [With respect to Advances] There does not exist, on this date, and
there will not exist after giving effect to the Advance requested in this
Request for Advance, any Default or Event of Default under the Loan Agreement.
4. [With respect to Advances] All Necessary Authorizations, except for
such Necessary Authorizations the failure of which to secure would not
reasonably be expected to have, individually or in the aggregate, a Materially
Adverse Effect, have been obtained or made, are in full force and effect and are
not subject to any pending or, to the Knowledge of the Borrowers, threatened
revocations, which if determined adversely to any Borrower or any Restricted
Subsidiary would not reasonably be expected to have, individually or in the
aggregate, a Materially Adverse Effect.
5. [With respect to Advances] On the date of such Advance, after giving
effect to the Advance requested hereby, the Borrowers shall be in compliance on
a pro forma basis with the covenants set forth in Sections 7.8, 7.9, 7.10, 7.11
and 7.15 of the Loan Agreement, and Schedule 2 attached hereto sets forth
calculations demonstrating such compliance.
6. [With respect to Advances] The cash balance on hand as of the date of
such Advance (excluding amounts which are held in the Proceeds Account) of the
Borrowers and their Subsidiaries shall not exceed (after giving effect to
application of proceeds of such Advance which proceeds must be intended to be
used within a reasonable period of time) $50,000,000.
7. [With respect to Advances] All other conditions precedent to the
Advance requested hereby set forth in Section 3.2 of the Loan Agreement have
been satisfied.
Capitalized terms used in this Request for Advance and not otherwise
defined are used as defined in the Loan Agreement.
-2-
SECOND AMENDED AND RESTATED LOAN AGREEMENT
REQUEST FOR ADVANCE
Signature Page
IN WITNESS WHEREOF, the Borrowers, acting through their Authorized
Signatories, have signed this Request for Advance, on the ______ day of
__________, ____.
AMERICAN TOWERS, INC., a Delaware
corporation
By:__________________________________
Name:_____________________________
Title:____________________________
AMERICAN TOWER, L.P., a Delaware
limited partnership
By: ATC GP Inc., its General Partner
By:__________________________________
Name:_____________________________
Title:____________________________
TOWERSITES MONITORING, INC., a
Delaware corporation
By:__________________________________
Name:_____________________________
Title:____________________________
AMERICAN TOWER INTERNATIONAL, INC.,
a Delaware corporation
By:__________________________________
Name:_____________________________
Title:____________________________
AMERICAN TOWER LLC, a Delaware limited
liability company
By:__________________________________
Name:_____________________________
Title:____________________________
-3-
SECOND AMENDED AND RESTATED LOAN AGREEMENT
REQUEST FOR ADVANCE
Signature Page
EXHIBIT B
REQUEST FOR ISSUANCE OF LETTER OF CREDIT
AMERICAN TOWERS, INC., a Delaware corporation ("AT Inc."), TOWERSITES
MONITORING, INC., a Delaware corporation ("Towersites"), AMERICAN TOWER
INTERNATIONAL, INC., a Delaware corporation ("AT International"), AMERICAN TOWER
LLC, a Delaware limited liability company ("AT LLC") and AMERICAN TOWER, L.P., a
Delaware limited partnership (collectively, with AT Inc., Towersites, AT
International and AT LLC, the "Borrowers"), in connection with that certain
Second Amended and Restated Loan Agreement dated February 21, 2003 (as amended,
modified, restated or supplemented from time to time, and as in effect on the
date hereof, the "Loan Agreement") by and among the Borrowers, the financial
institutions parties thereto (collectively, "Lenders"), the Issuing Bank (as
defined in the Loan Agreement) and Toronto Dominion (Texas), Inc., as
administrative agent (the "Administrative Agent"), each acting through its
Authorized Signatory, hereby certify to each of the foregoing Persons other than
the Borrowers that:
1. The Borrowers hereby request a [Standby/Commercial] Letter of Credit
in the face amount of $____________, to be issued on the date hereof
substantially in the form of Exhibit A attached hereto. The beneficiary of the
Letter of Credit requested hereunder shall be ________________________. The
Letter of Credit shall expire on _____________, _____ unless renewed as provided
therein.
2. The purpose of the Letter of Credit requested hereunder is to
___________________.
3. The Borrowers hereby represent and warrant in favor of each of the
Administrative Agent and the Lender, that all of the representations and
warranties of the Borrowers under the Loan Agreement, shall be true and correct
in all material respects, both before and after giving effect to the issuance of
such Letter of Credit and after giving effect to any updates to information
provided to the Lenders in accordance with the terms of such representations and
warranties
4. The incumbency of Persons authorized by the Borrowers to sign
documents on behalf of the Borrowers is as stated in the applicable certificate
of incumbency contained in the certificate of the Borrowers delivered to the
Administrative Agent prior to or on the Agreement Date or as subsequently
modified and reflected in a certificate of incumbency delivered to the
Administrative Agent and the Lenders having a Revolving Loan Commitment.
5. There does not exist, on this date, and after issuing the Letter of
Credit requested hereunder, a Default or Event of Default under the Loan
Agreement.
6. [With respect to any Letter of Credit issued hereunder on which any
of the Borrowers or their Restricted Subsidiaries is the named beneficiary] The
cash balance on hand as of the date of such Letter of Credit (excluding amounts
which are held in the Proceeds Account) of the Borrowers and their Subsidiaries
shall not exceed (after giving effect to the stated amount of such Letter of
Credit) $50,000,000.
7. All other conditions precedent to the Letter of Credit requested
hereby set forth in Section 3.3 of the Loan Agreement have been satisfied.
Capitalized terms used in this Request for Issuance of Letter of Credit
and not otherwise defined are used as defined in the Loan Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-2-
SECOND AMENDED AND RESTATED LOAN AGREEMENT
REQUEST FOR ISSUANCE OF LETTER OF CREDIT
Signature Page
IN WITNESS WHEREOF, the undersigned, an Authorized Signatory, has
signed this Request for Issuance of Letter of Credit on the _____ day of
__________ _____.
AMERICAN TOWERS, INC., a Delaware corporation
By:___________________________________________________________
Name:____________________________________________________
Title:___________________________________________________
AMERICAN TOWER, L.P., a Delaware limited partnership
By: ATC GP Inc., its General Partner
By:___________________________________________________________
Name:____________________________________________________
Title:___________________________________________________
TOWERSITES MONITORING, INC., a Delaware corporation
By:___________________________________________________________
Name:____________________________________________________
Title:___________________________________________________
AMERICAN TOWER INTERNATIONAL, INC., a Delaware corporation
By:___________________________________________________________
Name:____________________________________________________
Title:___________________________________________________
AMERICAN TOWER LLC, a Delaware limited liability company
By:___________________________________________________________
Name:____________________________________________________
Title:___________________________________________________
-3-
SECOND AMENDED AND RESTATED LOAN AGREEMENT
REQUEST FOR ISSUANCE OF LETTER OF CREDIT
Signature Page
EXHIBIT C
REVOLVING LOAN PROMISSORY NOTE
$____________________ _______, _____
FOR VALUE RECEIVED, the undersigned, American Tower, L.P., a Delaware
limited partnership ("AT LP"), American Towers, Inc., a Delaware corporation
("AT Inc."), Towersites Monitoring, Inc., a Delaware corporation ("Towersites"),
American Tower International, Inc., a Delaware corporation ("AT International")
and American Tower LLC, a Delaware limited liability company (collectively, with
AT LP, AT Inc., Towersites and AT International, the "Borrowers"), promise to
pay, on a joint and several basis, to the order of
_______________________________________ (hereinafter, together with its
successors and assigns, called the "Lender"), in immediately available funds, at
such place as is designated in or pursuant to the Loan Agreement (as hereinafter
defined), the principal sum of ______________________ AND __/100s DOLLARS
($_________________) of United States funds, or, if less, so much thereof as may
from time to time be advanced by the Lender to the Borrowers and is outstanding
hereunder, plus interest as hereinafter provided. Such advances and repayments
thereof may be endorsed from time to time on the grid attached hereto, but the
failure to make such notations (or any error in such notation) shall not affect
the obligation of the Borrowers to repay, on a joint and several basis, unpaid
principal and interest hereunder.
Except as otherwise defined or limited herein, capitalized terms used
herein shall have the meanings ascribed to them in that certain Second Amended
and Restated Loan Agreement dated as of February 21, 2003 (as amended, modified,
restated or supplemented from time to time, the "Loan Agreement") among the
Borrowers, the Lender, the other financial institutions party thereto (together
with the Lender, the "Lenders"), the Issuing Bank (as defined in the Loan
Agreement) and Toronto Dominion (Texas), Inc., as administrative agent (the
"Administrative Agent").
The principal amount of this Revolving Loan Note shall be paid in such
amounts and at such times as are set forth in Sections 2.5 and 2.7 of the Loan
Agreement. A final payment of all principal amounts and other Obligations then
outstanding hereunder shall be due and payable in full on the Revolving Loan
Maturity Date.
The Borrowers shall be entitled to borrow, repay, reborrow, Continue
and Convert amounts due hereunder pursuant to the terms and conditions of the
Loan Agreement. Prepayment of the principal amount hereof may be made only as
provided in the Loan Agreement.
The Borrowers hereby promise to pay, on a joint and several basis,
interest on the unpaid principal amount of the Revolving Loans outstanding
hereunder as provided in the Loan Agreement. Interest under this Revolving Loan
Note shall also be due and payable when this
Revolving Loan Note shall become due (whether at maturity, by reason of
acceleration or otherwise). Overdue principal and, to the extent permitted by
Applicable Law, overdue interest under this Revolving Loan Note, shall bear
interest at the Default Rate as provided in the Loan Agreement.
No provision of the Loan Agreement or this Revolving Loan Note shall
require the payment or permit the collection of interest in excess of that
permitted by Applicable Law. If any excess amount of interest in such respect is
provided for, or shall be adjudicated to be so provided for, in connection with
the Revolving Loans outstanding hereunder, the provisions of this paragraph
shall govern and prevail, and neither the Borrowers nor any sureties,
guarantors, successors or assigns of the Borrowers shall be obligated to pay the
excess amount of such interest or any other excess sum paid for the use,
forbearance, or detention of sums loaned pursuant hereto. In the event the
Borrowers ever pay, or the Lender ever receives, collects or applies as interest
any such sum, such amount which would be in excess of the maximum amount
permitted by Applicable Law shall be applied as a payment in the reduction of
the principal, unless the Borrowers shall notify the Lender in writing that it
elects to have such excess returned forthwith; and, if the principal has been
paid in full, any remaining excess shall forthwith be returned to the Borrowers.
Because of the variable nature of the rates of interest applicable to the
Revolving Loans evidenced by this Revolving Loan Note, the total interest that
will accrue hereon cannot be determined in advance. None of the Borrowers nor
the Lender intends for the Lender to contract for, charge or receive usurious
interest and, to prevent such an occurrence, any agreements which may now or
hereafter be in effect among the Borrowers, or any of them, and the Lender
regarding the payment of fees to the Lender are hereby limited by the provisions
of this paragraph. To the extent not prohibited by Applicable Law, determination
of the legal maximum amount of interest shall at all times be made by
amortizing, prorating or allocating all interest at any time contracted for,
charged or received from the Borrowers in connection with the portion of the
Revolving Loans outstanding hereunder until the Revolving Loan Maturity Date, so
that the actual rate of interest on account of the Revolving Loans outstanding
hereunder does not exceed the maximum amount permitted under Applicable Law.
All parties now or hereafter liable with respect to this Revolving Loan
Note, whether the Borrowers, any guarantor, endorser or any other Person, hereby
waive to the extent permitted by Applicable Law presentment for payment, demand,
notice of nonpayment or dishonor, protest and notice of protest.
No delay or omission on the part of the Lender or any holder hereof in
exercising its rights under this Revolving Loan Note, or delay or omission on
the part of the Lender, the Administrative Agent or the Lenders collectively, in
exercising its or their rights under the Loan Agreement or any other Loan
Documents, or course of conduct relating thereto, shall operate as a waiver of
such right or any other right of the Lender or any holder hereof, nor shall any
waiver by the Lender, the Administrative Agent or the Lenders collectively, or
any holder hereof, of any such right or rights on any one occasion be deemed a
bar to, or waiver of, the same right or rights on any future occasion.
-2-
The Borrowers promise to pay, on a joint and several basis, all
reasonable costs of collection, including, without limitation, attorneys' fees,
should this Revolving Loan Note be collected by or through an attorney-at-law or
under advice therefrom.
Time is of the essence of this Revolving Loan Note.
This Revolving Loan Note evidences the Lender's portion of the
Revolving Loans under, and is entitled to the benefits and subject to the terms
of, the Loan Agreement which contains provisions with respect of the
acceleration of the maturity of this Revolving Loan Note upon the happening of
certain stated events and provisions for prepayment. This Revolving Loan Note is
secured by and is also entitled to the benefits of the Security Documents.
This Revolving Loan Note shall be construed in accordance with and
governed by the internal laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Borrowers have executed this Revolving Loan
Note on the day and year first above written.
AMERICAN TOWERS, INC., a Delaware
corporation
By:_______________________________________
Name:__________________________________
Title:_________________________________
AMERICAN TOWER, L.P., a Delaware limited
partnership
By: ATC GP Inc., a Delaware corporation,
its General Partner
By:_______________________________________
Name:__________________________________
Title:_________________________________
TOWERSITES MONITORING, INC., a Delaware
corporation
By:_______________________________________
Name:__________________________________
Title:_________________________________
AMERICAN TOWER INTERNATIONAL, INC., a
Delaware corporation
By:_______________________________________
Name:__________________________________
Title:_________________________________
AMERICAN TOWER LLC, a Delaware limited
liability company
By:_______________________________________
Name:__________________________________
Title:_________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
REVOLVING LOAN PROMISSORY NOTE
Signature Page
ADVANCES
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EXHIBIT D
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (the "Guaranty"), is made this ___ day of
_________, __________, by ____________, a ___________ (the "Guarantor"), in
favor of the Guarantied Parties defined below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, American Tower, L.P., a Delaware limited partnership ("AT LP"),
American Towers, Inc., a Delaware corporation ("AT Inc."), Towersites
Monitoring, Inc., a Delaware corporation ("Towersites"), American Tower
International, Inc., a Delaware corporation ("AT International") and American
Tower LLC, a Delaware limited liability company (collectively, with AT LP, AT
Inc., Towersites and AT International, the "Borrowers"), the Lenders (as defined
therein), the Issuing Bank (as defined therein) and Toronto Dominion (Texas),
Inc., as administrative agent thereunder (the "Administrative Agent", and
together with the Lenders, Affiliates of a Lender party to an Interest Hedge
Agreement which is a Loan Document and the Issuing Bank, the "Guarantied
Parties") are all parties to that certain Second Amended and Restated Loan
Agreement dated February 21, 2003 (as amended, modified, restated or
supplemented from time to time, the "Loan Agreement"); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Guarantor is
required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor is a Restricted Subsidiary; and
WHEREAS, the Borrowers and the Guarantor are mutually dependent on each
other in the conduct of their respective businesses as an integrated operation,
and the Borrowers have as one of their purposes the obtaining of financing
needed from time to time by the Guarantor, with the Borrowers' ability to obtain
such financing being dependent, in part, on the successful operations of and the
properties owned by the Guarantor; and
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Guaranty directly benefit, and are within the corporate
purposes and in the best interests of, the Guarantor; and
WHEREAS, as a condition to the extension of the Loans by the Lenders and
the issuance of Letters of Credit by the Issuing Bank, the Guarantor has agreed
to execute this Guaranty guaranteeing the payment and performance by the
Borrowers of their obligations and covenants under the Notes, the Loan Agreement
and the other Loan Documents (the Loan Agreement, the Notes and the other Loan
Documents, as executed on the date hereof and as they may be
amended, modified or extended from time to time being hereinafter referred to as
the "Guarantied Agreements"); and
WHEREAS, capitalized terms used herein and not otherwise defined shall be
used as defined in the Loan Agreement;
NOW, THEREFORE, in consideration of the above premises, Ten Dollars
($10.00) in hand paid and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, subject to the provisions of
Section 7 hereof, the Guarantor hereby unconditionally guarantees to the
Guarantied Parties full and prompt payment and performance when due whether at
maturity, by acceleration or otherwise of all Obligations under the Loan
Agreement (collectively referred to herein as the "Guarantied Obligations").
Each Obligation shall rank pari passu with each other Obligation.
The Guarantor hereby further agrees, for the benefit of the Guarantied
Parties, that:
1. Obligations Several. Regardless of whether any proposed guarantor or any
other Person or Persons is, are or shall become in any other way responsible to
the Guarantied Parties, or any of them, for or in respect of the Guarantied
Obligations or any part thereof, and regardless of whether or not any Person or
Persons now or hereafter responsible to the Guarantied Parties, or any of them,
for the Guarantied Obligations or any part thereof, whether under this Guaranty
or otherwise, shall cease to be so liable, the Guarantor hereby declares and
agrees that this Guaranty is and shall continue to be a several obligation,
shall be a continuing guaranty and shall be operative and binding, and that the
Guarantor shall have no right of subrogation with respect to this Guaranty.
2. Guaranty Final. Upon the execution and delivery of this Guaranty to the
Administrative Agent, this Guaranty shall be deemed to be finally executed and
delivered by the Guarantor and shall not be subject to or affected by any
promise or condition affecting or limiting the Guarantor's liability (other than
as expressly set forth in Section 7 hereof), and no statement, representation,
agreement or promise on the part of the Guarantied Parties, the Borrowers, or
any of them, or any officer, employee or agent thereof, unless contained herein
forms any part of this Guaranty or has induced the making hereof or shall be
deemed in any way to affect the Guarantor's liability hereunder.
3. Amendment and Waiver. No alteration or waiver of this Guaranty or of any
of its terms, provisions or conditions shall be binding upon the Persons against
whom enforcement is sought unless made in writing and signed by an authorized
officer of such Person.
4. Dealings with Guarantor. The Guarantied Parties, or any of them, may,
from time to time, without exonerating or releasing the Guarantor in any way
under this Guaranty, (i) take such further or other security or securities for
the Guarantied Obligations or any part thereof as the Guarantied Parties, or any
of them, may deem proper, consistent with the Loan Agreement, or (ii) release,
discharge, abandon or otherwise deal with or fail to deal with any guarantor of
the Guarantied Obligations or any security or securities therefor or any part
thereof now or hereafter
-2-
held by the Guarantied Parties, or any of them, or (iii) consistent with the
Loan Agreement, amend, modify, extend, accelerate or waive in any manner any of
the provisions, terms, or conditions of the Guarantied Agreements, all as the
Guarantied Parties, or any of them, may consider expedient or appropriate in
their sole discretion. Without limiting the generality of the foregoing, or of
Paragraph 5 hereof, it is understood that the Guarantied Parties, or any of
them, may, without exonerating or releasing the Guarantor, give up, or modify or
abstain from perfecting or taking advantage of any security for the Guarantied
Obligations and accept or make any compositions or arrangements, and realize
upon any security for the Guarantied Obligations when, and in such manner, as
the Guarantied Parties, or any of them, may deem expedient, consistent with the
Loan Agreement, all without notice to the Guarantor, except as required by
Applicable Law.
5. Guaranty Unconditional. The Guarantor acknowledges and agrees that no
change in the nature or terms of the Guarantied Obligations or any of the
Guarantied Agreements, or other agreements, instruments or contracts evidencing,
related to or attendant with the Guarantied Obligations (including any
novation), nor any determination of lack of enforceability thereof, shall
discharge all or any part of the liabilities and obligations of the Guarantor
pursuant to this Guaranty; it being the purpose and intent of the Guarantor and
the Guarantied Parties that the covenants, agreements and all liabilities and
obligations of the Guarantor hereunder are absolute, unconditional and
irrevocable under any and all circumstances. Without limiting the generality of
the foregoing, the Guarantor agrees that until each and every one of the
covenants and agreements of this Guaranty is fully performed, the Guarantor's
undertakings hereunder shall not be released, in whole or in part, by any action
or thing which might, but for this paragraph of this Guaranty, be deemed a legal
or equitable discharge of a surety or guarantor, or by reason of any waiver,
omission of the Guarantied Parties, or any of them, or their failure to proceed
promptly or otherwise, or by reason of any action taken or omitted by the
Guarantied Parties, or any of them, whether or not such action or failure to act
varies or increases the risk of, or affects the rights or remedies of, the
Guarantor or by reason of any further dealings between the Borrowers and the
Guarantied Parties, or any of them, or any other guarantor or surety, and the
Guarantor, to the extent permitted by Applicable Law, hereby expressly waives
and surrenders any defense to its liability hereunder, or any right of
counterclaim or offset of any nature or description which it may have or which
may exist based upon, and shall be deemed to have consented to, any of the
foregoing acts, omissions, things, agreements or waivers.
6. Set-off. The Guarantied Parties, or any of them, may, without demand or
notice of any kind upon or to the Guarantor, at any time or from time to time
when any amount shall be due and payable hereunder by the Guarantor, if the
Borrowers shall not have timely paid their Guarantied Obligations, set off and
appropriate any property, balances, credit accounts or moneys of the Guarantor
(other than those held in a trust) in the possession of the Guarantied Parties,
or any of them, or under the control of any of them for any purpose, which
property, balances, credit accounts or moneys shall thereupon be turned over and
remitted to the Administrative Agent, to be held and applied to the Guarantied
Obligations by the Administrative Agent in accordance with the Loan Agreement,
and the Guarantor hereby grants to the Guarantied Parties, a security interest
in all such property. The Administrative Agent shall
-3-
give written notice to the Borrowers of the exercise of any of the foregoing
rights within one (1) Business Day following the exercise thereof.
7. Maximum Guarantied Amount. The creation or existence from time to time
of Guarantied Obligations in excess of the amount committed to or outstanding on
the date of this Guaranty is hereby authorized by the Guarantor, without notice
to the Guarantor, and shall in no way impair or affect this Guaranty or the
rights of the Guarantied Parties, or any of them, herein. Anything in this
Guaranty to be contrary notwithstanding, it is the intention of the Guarantor
and the Guarantied Parties, that the Guarantor's obligations hereunder shall be,
but not in excess of, the Maximum Guarantied Amount. The "Maximum Guarantied
Amount" shall mean the greater of (a) the amount of economic benefit received
(directly or indirectly) by the Guarantor pursuant to the Loan Agreement and the
other Loan Documents, and (b) the maximum amount which could be paid out by the
Guarantor without rendering this Guaranty void or voidable under Applicable Law
including, without limitation, (i) Title 11 of the United States Code, as
amended, and (ii) applicable state law regarding fraudulent conveyances.
8. Bankruptcy. Upon the bankruptcy or winding up or other distribution of
assets of the Borrowers or any Subsidiary of the Borrowers (other than the
Guarantor) or of any surety or guarantor for the Guarantied Obligations, the
rights of the Guarantied Parties, or any of them, against the Guarantor shall
not be affected or impaired by the omission of the Guarantied Parties, or any of
them, to prove its or their claim, as appropriate, or to prove its or their full
claim, as appropriate, and the Guarantied Parties may prove such claims as they
see fit and may refrain from proving any claim and in their respective
discretion they may value as they see fit or refrain from valuing any security
held by the Guarantied Parties, or any of them, without in any way releasing,
reducing or otherwise affecting the liability to the Guarantied Parties of the
Guarantor.
9. Application of Payments. Any amount received by the Guarantied Parties,
or any of them, from whatsoever source and applied toward the payment of the
Guarantied Obligations shall be applied in such order of application as is set
forth in the Loan Agreement.
10. Waivers by Guarantor. The Guarantor hereby expressly waives, to the
extent permitted by Applicable Law: (a) notice of acceptance of this Guaranty,
(b) notice of the existence or creation of all or any of the Guarantied
Obligations, (c) presentment, demand, notice of dishonor, protest, and all other
notices whatsoever, (d) all diligence in collection or protection of or
realization upon the Guarantied Obligations or any part thereof, any obligation
hereunder, or any security for any of the foregoing and (e) all rights of
subrogation, indemnification, contribution and reimbursement against the
Borrowers, all rights to enforce any remedy the Guarantied Parties, or any of
them, may have against the Borrowers and any benefit of, or right to participate
in, any collateral or security now or hereinafter held by the Guarantied
Parties, or any of them, in respect of the Guarantied Obligations, even upon
payment in full of the Guarantied Obligations. Any money received by the
Guarantor in violation of this Section shall be held in trust by the Guarantor
for the benefit of the Guarantied Parties. If a claim is ever made upon the
Guarantied Parties, or any of them, for the repayment or recovery of any amount
or amounts received by any of them in payment of any of the Guarantied
Obligations and such Person repays all or part of such amount by reason of (a)
any judgment, decree, or order of any
-4-
court or administrative body having jurisdiction over such Person or any of its
property, or (b) any good faith settlement or compromise of any such claim
effected by such Person with any such claimant, including any of the Borrowers,
then in such event the Guarantor agrees that any such judgment, decree, order,
settlement, or compromise shall be binding upon the Guarantor, notwithstanding
any revocation hereof or the cancellation of any promissory note or other
instrument evidencing any of the Guarantied Obligations, and the Guarantor shall
be and remain obligated to such Person hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by such Person.
11. Assignment by the Guarantied Parties. To the extent permitted under the
Loan Agreement, the Guarantied Parties may each, and without notice of any kind,
except as otherwise required by the Loan Agreement, sell, assign or transfer all
or any of the Guarantied Obligations. The Guarantor shall not assign its rights
or obligations under this Guaranty without the consent of the Administrative
Agent, nor shall the Guarantor amend this Guaranty, without the consent of the
Majority Lenders. In the event of an assignment hereunder, each and every
immediate and successive assignee, transferee, or holder of all or any of the
Guarantied Obligations, shall have the right to enforce this Guaranty, by suit
or otherwise, for the benefit of such assignee, transferee or holder as fully as
if such assignee, transferee or holder were herein by name specifically given
such rights, powers and benefits. This Guaranty shall be binding upon the
Guarantor, its successors and assigns and inure to the benefit of the successors
and assigns of the Guarantor.
12. Remedies Cumulative. No delay by the Guarantied Parties, or any of
them, in the exercise of any right or remedy shall operate as a waiver thereof,
and no single or partial exercise by the Guarantied Parties, or any of them, of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any other right or remedy. No action by the Guarantied Parties, or
any of them, permitted hereunder shall in any way impair or affect this
Guaranty. For the purpose of this Guaranty, the Guarantied Obligations shall
include, without limitation, all Guarantied Obligations of the Borrowers to the
Guarantied Parties notwithstanding any right or power of any third party,
individually or in the name of any of the Borrowers or any other Person, to
assert any claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of the Guarantor hereunder.
13. Miscellaneous. This is a Guaranty of payment and not of collection. In
the event of a demand upon the Guarantor under this Guaranty, the Guarantor
shall be held and bound to the Guarantied Parties directly as debtor in respect
of the payment of the amounts hereby Guarantied. All reasonable costs and
expenses, including, without limitation, attorneys' fees and expenses, incurred
by the Guarantied Parties, or any of them, in obtaining performance of or
collecting payments due under this Guaranty shall be deemed part of the
Guarantied Obligations Guarantied hereby. Any notice or demand which the
Guarantied Parties, or any of them, may wish to give shall be served upon the
Guarantor in the fashion prescribed for notices in Section 11.1 of the Loan
Agreement in care of the Borrowers at the address for the Borrowers set forth in
or otherwise provided pursuant to Section 11.1 of the Loan Agreement, and the
notice so sent shall be deemed to be served as set forth in Section 11.1 of the
Loan Agreement.
-5-
14. Loans Benefit Guarantor. The Guarantor expressly represents and
acknowledges that any financial accommodations by the Guarantied Parties, or any
of them, to the Borrowers, including, without limitation, the extension of the
Loans, are and will be of direct interest, benefit and advantage to the
Guarantor.
15. Solvency. The Guarantor expressly represents and warrants that on the
date hereof and after giving effect to the transactions contemplated by the Loan
Documents (i) the property of the Guarantor, at a fair valuation, will exceed
its debt; (ii) the capital of the Guarantor will not be unreasonably small to
conduct its business; (iii) the Guarantor will not have incurred debts, or have
intended to incur debts, beyond its ability to pay such debts as they mature;
and (iv) the present fair salable value of the assets of the Guarantor will be
materially greater than the amount that will be required to pay its probable
liabilities (including debts) as they become absolute and matured. For purposes
of this Section 15, "debt" means any liability on a claim, and "claim" means (a)
the right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, undisputed,
legal, equitable, secured or unsecured, or (b) the right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, undisputed, secured or unsecured.
16. Visits and Inspections. The Guarantor covenants and agrees that so long
as any amount is owing on account of Guarantied Obligations or otherwise
pursuant to this Guaranty, the Guarantor shall permit representatives of the
Guarantied Parties, or any of them, to visit and inspect properties of the
Guarantor during normal business hours after reasonable notice, inspect the
Guarantor's books and records and discuss with the principal officers of the
Guarantor its businesses, assets, liabilities, financial positions, results of
operations and business prospects.
17. Governing Law. This Guaranty shall be construed in accordance with and
governed by the internal laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
-6-
18. Jurisdiction and Venue. If any action or proceeding shall be brought by
the Administrative Agent in order to enforce any right or remedy under this
Guaranty, the Guarantor hereby consents to the jurisdiction of any state or
federal court of competent jurisdiction sitting within the area comprising the
Southern District of New York on the date of this Guaranty. The Guarantor hereby
agrees, to the extent permitted by Applicable Law that service of the summons
and complaint and all other process which may be served in any such suit, action
or proceeding may be effected by mailing by registered mail a copy of such
process to the offices of the Borrowers, as set forth in or otherwise provided
pursuant to Section 11.1 of the Loan Agreement, and that personal service of
process shall not be required. Nothing herein shall be construed to prohibit
service of process by any other method permitted by law, or the bringing of any
suit, action or proceeding in any other jurisdiction. The Guarantor agrees that
final judgment in such suit, action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by Applicable Law.
19. Waiver of Jury Trial. THE GUARANTOR WAIVES ANY RIGHT TO A TRIAL BY JURY
IN ANY PROCEEDING ARISING OUT OF THIS GUARANTY.
20. Time of the Essence. Time is of the essence with regard to the
Guarantor's performance of its obligations hereunder.
21. Administrative Agent. Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Administrative Agent" shall
be a reference to the Administrative Agent for the benefit of all the Guarantied
Parties, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of all the Guarantied Parties.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-7-
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
by an Authorized Signatory on the date first above written.
GUARANTOR: _____________________________, a
________________
By: _______________________________________
Name:________________________________
Its:_________________________________
-8-
EXHIBIT E
SUBSIDIARY PLEDGE AGREEMENT
THIS SUBSIDIARY PLEDGE AGREEMENT (the "Agreement") is entered into on
this ___ day of _______, ____ by and between ___________________, a __________
(the "Pledgor") and TORONTO DOMINION (TEXAS), INC., as administrative agent (the
"Administrative Agent") on behalf of the Secured Parties defined below.
W I T N E S S E T H:
WHEREAS, American Tower, L.P., a Delaware limited partnership ("AT
LP"), American Towers, Inc., a Delaware corporation ("AT Inc."), Towersites
Monitoring, Inc., a Delaware corporation ("Towersites"), American Tower
International, Inc., a Delaware corporation ("AT International") and American
Tower LLC, a Delaware limited liability company (collectively, with AT LP, AT
Inc., Towersites and AT International, the "Borrowers"), the Lenders (as defined
therein), the Issuing Bank (as defined therein) and Toronto Dominion (Texas),
Inc., as administrative agent thereunder (the "Administrative Agent", and
together with the Lenders, Affiliates of a Lender party to an Interest Hedge
Agreement which is a Loan Document and the Issuing Bank, the "Secured Parties")
are all parties to that certain Second Amended and Restated Loan Agreement dated
as of February 21, 2003 (as amended, modified, restated or supplemented from
time to time, and as in effect on the date hereof, the "Loan Agreement"); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Pledgor
executed that certain Subsidiary Guaranty dated as of __________ (the
"Guaranty") and is required to execute and deliver this Agreement; and
WHEREAS, the Pledgor is a Restricted Subsidiary and is engaged in the
business of owning and operating communications tower facilities as an
integrated operation with the Borrowers and their other Subsidiaries; and
WHEREAS, the Pledgor has determined that its execution, delivery and
performance of this Agreement directly benefit, and are within the corporate
purposes and in the best interests of, the Pledgor; and
WHEREAS, to secure the payment and performance by the Borrowers of
their Obligations arising under the Loan Agreement, the Pledgor and the
Administrative Agent (on behalf of the Secured Parties) have agreed that the
shares of capital stock (the "Stock") owned by the Pledgor in each of the
corporate Restricted Subsidiaries of the Pledgor listed on Schedule 1 attached
hereto (the "Subsidiaries") shall be pledged by the Pledgor to the
Administrative Agent (on behalf of the Secured Parties) to secure the Guarantied
Obligations (as defined in the Guaranty);
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreements to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Warranty. The Pledgor hereby represents and warrants to the
Secured Parties that, except for the security interest created hereby, the
Pledgor owns the Stock, which constitutes the percentage of the issued and
outstanding stock of the corporate Restricted Subsidiaries as set forth on
Schedule 1 attached hereto, free and clear of all Liens (except Permitted
Liens), that the Stock is duly issued, fully paid and non-assessable, and that
the Pledgor has the unencumbered right to pledge the Stock. In addition, Pledgor
represents and covenants as follows: (1) the Stock represents all of Pledgor's
shares of capital stock in any corporate Restricted Subsidiary; (2) upon
possession and retention of the Stock by the Administrative Agent, the
Administrative Agent shall have a valid and perfected first priority security
interest in the Stock, securing the payment of the Guarantied Obligations; and
(3) except as noted on Schedule 2 attached hereto, the Stock represents all the
outstanding shares of stock issued by any corporate Restricted Subsidiary of the
Pledgor.
2. Security Interest. The Pledgor hereby unconditionally grants and
assigns to the Administrative Agent, on behalf of the Secured Parties, and their
respective successors and assigns, a continuing security interest in and
security title to the Stock and any other shares of capital stock of any
corporate Restricted Subsidiary of the Pledgor obtained in the future, and in
each case, all certificates representing such shares, all rights, options,
warrants, stock or other securities or other property which may hereafter be
received, receivable or distributed in respect of the Stock, together with all
proceeds of the foregoing, including, without limitation, all dividends, cash,
notes, securities or other property from time to time acquired, receivable or
otherwise distributed in respect of, or in exchange for, the foregoing, all of
which shall constitute "Stock" hereunder. The Pledgor has delivered to and
deposited with the Administrative Agent herewith all of its right, title and
interest in and to the Stock, together with certificates representing the Stock,
and undated stock powers endorsed in blank, as security for the payment and
performance of all of the Guarantied Obligations of the Pledgor and any other
obligor to the Secured Parties, or any of them, under this Agreement and the
Guaranty and any extensions, renewals or amendments of any of the foregoing,
however created, acquired, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due; it
being the intention of the parties hereto that beneficial ownership of the
Stock, including, without limitation, all voting, consensual and dividend
rights, shall remain in the Pledgor until the occurrence and during continuance
of an Event of Default and until the Administrative Agent shall notify the
Pledgor of the Administrative Agent's exercise of voting and dividend rights to
the Stock pursuant to Section 9 of this Agreement.
3. Additional Shares. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification,
readjustment, or other change is declared or made in the capital
structure of any corporate Restricted Subsidiary
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of the Pledgor, or any new stock is issued by such corporate Restricted
Subsidiary of the Pledgor, or any new corporate Restricted Subsidiary
of the Pledgor is formed or acquired, all new, substituted, and
additional shares shall be issued to the Pledgor and shall be promptly
delivered to the Administrative Agent, together with undated stock
powers endorsed in blank by the Pledgor, and shall thereupon constitute
Stock to be held by the Administrative Agent under the terms of this
Agreement; and
b) any subscriptions, warrants or any other rights or options
shall be issued in connection with the Stock, all new stock or other
securities acquired through such subscriptions, warrants, rights or
options by the Pledgor shall be promptly delivered to the
Administrative Agent, together with undated Stock powers endorsed in
blank, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement.
4. Default. In the event of the occurrence of an Event of Default
and so long as any such Event of Default is continuing, the Administrative Agent
may sell or otherwise dispose of the Stock at a public or private sale or make
other commercially reasonable disposition of the Stock or any portion thereof
after fifteen (15) days' notice to the Pledgor and the Secured Parties, or any
of them, may purchase the Stock or any portion thereof at any public sale. The
proceeds of the public or private sale or other disposition shall be applied
first to the costs of the Administrative Agent incurred in connection with the
sale, expressly including, without limitation, any costs under Section 7 hereof,
and then as provided in the Loan Agreement. In the event the proceeds of the
sale or other disposition of the Stock are insufficient to satisfy the
Guarantied Obligations, the Pledgor shall remain liable for any such deficiency
to the extent provided in the Guaranty. The Pledgor waives, to the extent
permitted by Applicable Law, the rights of equity of redemption, appraisal,
notice of acceptance, presentment, demand and marshalling, to the extent
applicable.
5. Additional Rights of Secured Party. In addition to its rights and
privileges under this Agreement, the Administrative Agent, on behalf of the
Secured Parties, shall have all the rights, powers and privileges of a secured
party under the Uniform Commercial Code as in effect in any applicable
jurisdiction and other Applicable Law.
6. Return of Stock to the Pledgor. Upon payment in full of all
principal and interest on the Notes, full performance by the Borrowers of all
covenants, undertakings and Obligations under the Loan Agreement and the other
Loan Documents, and satisfaction in full of any other Guarantied Obligations,
other than the Guarantied Obligations which survive the termination of the Loan
Agreement as provided in Section 11.16 of the Loan Agreement, and after such
time as the Lenders shall have no obligation to make any further Advances to the
Borrowers, this Agreement shall terminate and the Administrative Agent shall
return the remaining Stock and all rights received by the Administrative Agent
as a result of its possessory interest in the Stock to the Pledgor.
7. Disposition of Stock by Administrative Agent. The Stock is not
registered or qualified under the various Federal or state securities laws of
the United States and disposition
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thereof after an Event of Default may be restricted to one or more private
(instead of public) sales in view of the lack of such registration. The Pledgor
understands that upon such disposition, the Administrative Agent may approach
only a restricted number of potential purchasers and further understands that a
sale under such circumstances may yield a lower price for the Stock than if the
Stock were registered and qualified pursuant to federal and state securities
laws and sold on the open market. The Pledgor, therefore, agrees that:
(a) if the Administrative Agent shall, pursuant to the terms
of this Agreement, sell or cause the Stock or any portion thereof to be
sold at a private sale, the Administrative Agent shall have the right
to rely upon the advice and opinion of any national brokerage or
investment firm having recognized expertise and experience in
connection with shares of communications tower companies (but shall not
be obligated to seek such advice and the failure to do so shall not be
considered in determining the commercial reasonableness of such action)
as to the best manner in which to expose the Stock for sale and as to
the best price reasonably obtainable at the private sale thereof; and
(b) that such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner absent manifest error.
8. Pledgor's Obligations Absolute. The obligations of the Pledgor
under this Agreement shall be direct and immediate and not conditional or
contingent upon the pursuit of any remedies against the Borrowers or any other
Person, nor against other security or liens available to any Secured Party. The
Pledgor hereby waives any right to require that an action be brought against any
other Person or to require that resort be had to any security or to any balance
of any deposit account or credit on the books of any of the Secured Parties in
favor of any other Person prior to the exercise of remedies hereunder, or to
require action hereunder prior to resort by the Administrative Agent to any
other security or collateral for the Guarantied Obligations. No amendment,
modification, waiver, transfer or renewal, extension, assignment or termination
of this Agreement or of the Loan Agreement or of any other Loan Document, or of
any instrument or document executed and delivered by the Pledgor or any other
obligor with respect to the Guarantied Obligations to the Secured Parties, or
any of them, nor additional advances made by the Secured Parties, or any of
them, to the Borrowers, nor the taking of further security, nor the retaking or
re-delivery or release of the Collateral to the Borrowers or any other person or
any other collateral or guaranty by the Secured Parties, or any of them, nor any
lack of validity or enforceability of any Loan Document or any term thereof, nor
any other act of the Secured Parties, or any of them, shall release the Pledgor
from any Guarantied Obligation, except a release or discharge executed in
writing by the Administrative Agent in accordance with the Loan Agreement with
respect to such Guarantied Obligation or upon full payment and satisfaction of
all Guarantied Obligations. None of the Secured Parties shall, by any act,
delay, omission or otherwise, be deemed to have waived any of its or their
rights or remedies hereunder, unless such waiver is in writing and signed by the
Administrative Agent in accordance with the Loan Agreement and then only to the
extent therein set forth. A waiver by the Secured Parties, or any of them, of
any right or remedy on any occasion shall not be
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construed as a bar to the exercise of any such right or remedy which any such
Person would otherwise have had on any other occasion.
9. Voting Rights.
(a) For so long as any Guarantied Obligations remain unpaid,
after and during the continuation of an Event of Default, but subject
to the provisions of Section 15 hereof, (i) the Administrative Agent
may, upon fifteen (15) days' prior written notice to the Pledgor of its
intention to do so, exercise all voting rights, and all other ownership
or consensual rights of the Stock, but under no circumstances is the
Administrative Agent obligated by the terms of this Agreement to
exercise such rights, and (ii) the Pledgor hereby appoints the
Administrative Agent, which appointment shall be effective on the
fifteenth (15th) day following the giving of notice by the
Administrative Agent as provided in the foregoing Section 9(a)(i), the
Pledgor's true and lawful attorney-in-fact and IRREVOCABLE PROXY to
vote the Stock in any manner the Administrative Agent deems advisable
for or against all matters submitted or which may be submitted to a
vote of shareholders. The power-of-attorney granted hereby is coupled
with an interest and shall be irrevocable.
(b) For so long as the Pledgor shall have the right to vote
the Stock, the Pledgor covenants and agrees that it will not, without
the prior written consent of the Administrative Agent, vote or take any
consensual action with respect to the Stock which would constitute an
Event of Default.
10. Amendments and Waivers. No amendment, modification, waiver,
transfer or renewal, extension, assignment or termination of this Agreement or
of the Loan Agreement or of any other Loan Document, or of any instrument or
document executed and delivered by the Pledgor or any other obligor to the
Secured Parties, or any of them, nor additional advances made by the Secured
Parties, or any of them, to the Pledgor, nor the taking of further security, nor
the retaking or re-delivery or release of the Collateral to the Pledgor or any
other collateral or guaranty by the Secured Parties, or any of them, nor any
lack of validity or enforceability of any Loan Document or any term thereof nor
any other act of the Secured Parties, or any of them, shall release the Pledgor
from any Guarantied Obligation, except a release or discharge executed in
writing by the Administrative Agent in accordance with the Loan Agreement with
respect to such Guarantied Obligation or upon full payment and satisfaction of
all Guarantied Obligations and termination of the Commitments. None of the
Secured Parties shall by any act, delay, omission or otherwise, be deemed to
have waived any of its or their rights or remedies hereunder, unless such waiver
is in writing and signed by the Administrative Agent or one or more of the
Secured Parties in accordance with the Loan Agreement and then only to the
extent therein set forth. A waiver by the Secured Parties, or any of them, of
any right or remedy on any occasion shall not be construed as a bar to the
exercise of any such right or remedy which any such Person would otherwise have
had on any other occasion.
11. Assignment. The Pledgor hereby agrees that this Agreement or
the rights hereunder may, in the discretion of the Secured Parties, or any of
them, as applicable, be
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assigned by the Secured Parties, or any of them, in whole or in part in
connection with any assignment of the Loan Agreement or the Obligations arising
thereunder, as permitted thereunder. In the event this Agreement or the rights
hereunder are so assigned by any of the Secured Parties, the terms
"Administrative Agent" or "Secured Parties," wherever used herein, shall be
deemed, as applicable, to refer to and include any such assignee. This Agreement
may not be assigned by the Pledgor, but shall apply to and bind the respective
successors and permitted assigns of the Pledgor and inure to the benefit of the
successors and permitted assigns of the Pledgor.
12. Notices. All notices and other communications required or permitted
hereunder shall be in writing, and shall be given in the fashion set forth in
Section 11.1 of the Loan Agreement, and with respect to the Pledgor, at the
address for the Borrowers set forth in or otherwise provided pursuant to Section
11.1 of the Loan Agreement.
13. Governing Law. The provisions of this Agreement shall be construed
and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in the State of New York. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement between the parties with respect to the matters addressed
herein and may not be modified except by a writing executed by the
Administrative Agent and the Pledgor and delivered by the Administrative Agent
to the Pledgor.
14. Severability. If any paragraph or part thereof shall for any reason
be held or adjudged to be invalid, illegal or unenforceable by any court of
competent jurisdiction, such paragraph or part thereof so adjudicated invalid,
illegal or unenforceable shall be deemed separate, distinct and independent, and
the remainder of this Agreement shall remain in full force and effect and shall
not be affected by such holding or adjudication.
15. FCC Compliance. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
which may require the consent or approval of the FCC, and the proxy granted in
Section 9(a) hereof shall not become effective, unless and until all
requirements of the Communications Act requiring the consent to or approval of
such action by the FCC have been satisfied. The Pledgor covenants that,
following and during the continuation of an Event of Default, upon request of
the Administrative Agent, it will cause to be filed such applications and take
such other action as may be reasonably requested by the Administrative Agent to
obtain consent or approval of the FCC to any action contemplated by this
Agreement and to give effect to the security interest of the Administrative
Agent, including, without limitation, the execution of an application for
consent by the FCC to an assignment or transfer involving a change in ownership
or control pursuant to the provisions of the Communications Act.
16. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
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17. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of all the
Secured Parties, and each action taken or right exercised hereunder shall be
deemed to have been so taken or exercised by the Administrative Agent for the
benefit of and on behalf of all the Secured Parties.
18. Jurisdiction and Venue. If any action or proceeding shall be
brought by the Administrative Agent in order to enforce any right or remedy
under this Agreement, the Pledgor hereby consents to the jurisdiction of any
state or federal court of competent jurisdiction sitting within the area
comprising the Southern District of New York on the date of this Agreement. The
Pledgor hereby agrees, to the extent permitted by Applicable Law that service of
the summons and complaint and all other process which may be served in any such
suit, action or proceeding may be effected by mailing by registered mail a copy
of such process to the offices of the Borrowers, as set forth in or otherwise
provided pursuant to Section 11.1 of the Loan Agreement, and that personal
service of process shall not be required. Nothing herein shall be construed to
prohibit service of process by any other method permitted by law, or the
bringing of any suit, action or proceeding in any other jurisdiction. The
Pledgor agrees that final judgment in such suit, action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by Applicable Law.
19. WAIVER OF JURY TRIAL. THE PLEDGOR WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY PROCEEDING ARISING OUT OF THIS AGREEMENT.
20. Time of the Essence. Time is of the essence with regard to the
Pledgor's performance of its obligations hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, on the day and year
first above written.
PLEDGOR: ________________, a ____________
By:_______________________________________
Name:__________________________________
Title:_________________________________
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:_______________________________________
Name:__________________________________
Title:_________________________________
AMENDED AND RESTATED LOAN AGREEMENT
PLEDGE AGREEMENT
Signature Page
EXHIBIT F
SUBSIDIARY SECURITY AGREEMENT
THIS SUBSIDIARY SECURITY AGREEMENT (this "Agreement") dated the ___ day of
_________, ____ is made by and between __________________, a ____________(the
"Subsidiary"), and TORONTO DOMINION (TEXAS), INC., as administrative agent (the
"Administrative Agent") on behalf of the Secured Parties defined below.
W I T N E S S E T H:
WHEREAS, American Tower, L.P., a Delaware limited partnership ("AT LP"),
American Towers, Inc., a Delaware corporation ("AT Inc."), Towersites
Monitoring, Inc., a Delaware corporation ("Towersites"), American Tower
International, Inc., a Delaware corporation ("AT International") and American
Tower LLC, a Delaware limited liability company (collectively, with AT LP, AT
Inc., Towersites and AT International, the "Borrowers"), the Lenders (as defined
therein), the Issuing Bank (as defined therein) and Toronto Dominion (Texas),
Inc., as administrative agent thereunder (the "Administrative Agent", and
together with the Lenders, Affiliates of a Lender party to an Interest Hedge
Agreement which is a Loan Document and the Issuing Bank, the "Secured Parties")
are all parties to that certain Second Amended and Restated Loan Agreement dated
as of February 21, 2003 (as amended, modified, restated or supplemented from
time to time, and as in effect on the date hereof, the "Loan Agreement"); and
WHEREAS, the Borrowers and the Subsidiary are mutually dependent on each
other in the conduct of their respective businesses as an integrated operation,
and the Borrowers have as one of their corporate and partnership purposes the
obtaining of financing from time to time by the Subsidiary, with the Borrowers'
ability to obtain such financing being dependent, in part, on the successful
operations of the properties owned by the Subsidiary; and
WHEREAS, the Subsidiary has determined that its execution, delivery and
performance of this Agreement directly benefit, and are within the corporate
purposes and in the best interests of, the Subsidiary; and
WHEREAS, pursuant to the terms of the Loan Agreement, the Subsidiary is
required to execute and deliver this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Grant of Security Interest. Subject to the provisions of Sections 22
and 24 hereof, the Subsidiary hereby unconditionally grants and assigns to the
Administrative Agent (on behalf of the Secured Parties) a continuing security
interest in and security title to (hereinafter referred to as the "Security
Interest") all of its property and assets and all additions thereto and
replacements thereof, and all other property whether now owned or hereafter
created, acquired or reacquired by the Subsidiary, including:
Inventory
All inventory and supplies of whatsoever nature and kind and wheresoever
situated, including, without limitation, raw materials, components, work in
process, finished goods, goods in transit and packing and shipping materials,
accretions and accessions thereto, trust receipts and similar documents covering
the same products (the "Inventory");
Accounts
All right to payment for goods sold or leased or for services rendered,
expressly including, without limitation, in connection with owning, leasing,
managing and operating communications tower facilities, whether or not earned by
performance, including, without limitation, all agreements with and sums due
from customers and other Persons, and all books and records recording,
evidencing or relating to such rights or any part thereof (the "Accounts");
Equipment
All machinery, equipment, communications towers and supplies (installed and
uninstalled) not included in Inventory above, including motor vehicles and
accretions and accessions thereto; and expressly including, without limitation,
towers, antennas and equipment located at communications tower facilities; any
distribution systems and all components thereof, including, without limitation,
hardware, cables, fiber optic cables, switches, CODECs, computer equipment,
amplifiers, and associated devices; and any other equipment used in connection
with the Subsidiary's business (the "Equipment");
Contracts and Leases
All assignable (a) construction contracts, subscriber contracts, customer
service agreements, management agreements, rights of way, easements, pole
attachment agreements, transmission capacity agreements, public utility
contracts and other agreements to which the Subsidiary is a party, whether now
existing or hereafter arising (the "Contracts"); (b) lease agreements for
personal property to which the Subsidiary is a party, whether now existing or
hereafter arising (the "Leases"); and (c) other contracts and contractual
rights, remedies or provisions now existing or hereafter arising in favor of the
Subsidiary (the "Other Contracts");
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General Intangibles
All general intangibles including personal property not included above,
such as, without limitation, all goodwill, trademarks, trademark applications,
trade names, trade secrets, industrial designs, other industrial or intellectual
property or rights therein, whether under license or otherwise, claims for tax
refunds, and tax refund amounts (the "Intangibles");
Membership Interests
All membership rights, privileges and interests of the Subsidiary in any
Person, including, without limitation, (a) the right to receive distributions at
any time or from time to time in cash or other property, (b) the right to any
specific property of such Person, if any, and (c) all of the Subsidiary's right
to participate in the management of such Person (the "Membership Interests");
Investment Property
All investment property, including, without limitation, all securities,
whether certificated or uncertificated, security entitlements, securities
accounts, commodity contracts and commodity accounts (the "Investment
Property");
Licenses
To the extent permitted by Applicable Law and subject to Sections 22 and 24
hereof, all franchises, licenses, permits and operating rights authorizing or
relating to the Subsidiary's rights to operate and maintain communications tower
facilities or similar business including, without limitation, the Licenses, all
as more particularly described on Schedule 1 attached hereto (the "Licenses");
Furniture and Fixtures
All furniture and fixtures in which the Subsidiary has an interest (the
"Furniture and Fixtures");
Miscellaneous Items
All goods, chattel paper, documents, instruments, supplies, choses in
action, claims, money, deposits, certificates of deposit, stock or share
certificates, and licenses and other rights in intellectual property and other
tangible personal property not included above (the "Miscellaneous Items"); and
Proceeds
All proceeds of any of the above, and all proceeds of any loss of, damage
to or destruction of the above, whether insured or not insured, and all other
proceeds of any sale, lease
-3-
or other disposition of any property or interest therein referred to above
including, without limitation, the proceeds of the sale of any License, together
with all proceeds of any policies of insurance covering any or all of the above,
the proceeds of any award in condemnation with respect to any of the property of
the Subsidiary, any rebates or refunds, whether for taxes or otherwise, together
with all proceeds of any such proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other Contracts, Leases,
Intangibles, Membership Interests, Investment Property, Licenses, Furniture and
Fixtures, Miscellaneous Items, and Proceeds, as described above, are hereinafter
collectively referred to as the "Collateral."
This Agreement and the Security Interest secure payment and performance of
all obligations of the Subsidiary to the Secured Parties, or any of them, under
that certain Subsidiary Guaranty of even date given by the Subsidiary for the
benefit of the Secured Parties, and any extensions, renewals or amendments
thereto, however created, acquired, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or to become
due, (all of the foregoing obligations being hereinafter collectively referred
to as the "Obligations").
2. Further Assurances. The Subsidiary hereby authorizes the
Administrative Agent to file such financing statements and such other documents
as the Administrative Agent may reasonably require to protect or perfect the
interest of the Secured Parties in the Collateral, and the Subsidiary further
irrevocably appoints the Administrative Agent as its attorney-in-fact, with a
power of attorney to execute on behalf of the Subsidiary such Uniform Commercial
Code (the "UCC") financing statement forms as the Administrative Agent may from
time to time reasonably deem necessary or desirable to protect or perfect such
interest in the Collateral. Such power of attorney is coupled with an interest
and shall be irrevocable. In addition, the Subsidiary agrees to do, execute and
deliver or cause to be done, executed and delivered all such further acts,
documents and things as the Administrative Agent may reasonably require for the
purpose of perfecting or protecting the rights of the Secured Parties hereunder
or otherwise giving effect to this Agreement, all promptly upon request
therefor.
3. Representations and Warranties. The Subsidiary represents and warrants
to the Secured Parties that:
(a) the execution of this Agreement and the fulfillment of the terms
hereof will not result in a breach of any of the terms or provisions of, or
constitute a default under, the Subsidiary's Certificate or Articles of
Incorporation or By-Laws as currently in effect, or any order, rule or
regulation applicable to the Subsidiary of any court or of any federal or
state regulatory body or administrative agency or other governmental body
having jurisdiction over the Subsidiary, or result in the termination or
cancellation or breach of any indenture, mortgage, deed of trust, deed to
secure debt, lease or other agreement or instrument to which the Subsidiary
is a party or by which it is bound or affected;
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(b) the Subsidiary has taken all necessary corporate action to
authorize the execution and delivery of this Agreement, and this Agreement,
when executed and delivered, will be the valid and binding obligation of
the Subsidiary enforceable in accordance with its terms, subject only to
the following qualifications:
(i) certain equitable remedies are discretionary and, in
particular, may not be available where damages are considered an
adequate remedy at law,
(ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any
such law relates to the bankruptcy, insolvency or similar event of the
Subsidiary), and
(iii) enforcement as to the Licenses is limited by FCC rules and
regulations restricting the transfer of such Licenses.
(c) Schedule 1 attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of the Licenses in effect
on the date hereof.
4. Representations and Warranties Concerning Collateral. The Subsidiary
further represents and warrants that (a) the Security Interest in the Collateral
granted hereunder shall constitute at all times a valid first priority security
interest (subject only to Permitted Liens), vested in the Administrative Agent,
in and upon the Collateral, free of any Liens except for Permitted Liens, (b)
the location of the Inventory and the Equipment is as set forth on Schedule 2
hereto, and (c) none of the Accounts are represented by promissory notes or
other instruments. The Subsidiary shall take or cause to be taken such acts and
actions as shall be necessary or appropriate to assure that the Security
Interest in the Collateral shall not become subordinate or junior to the
security interests, liens or claims of any other Person, and that the Collateral
shall not otherwise be or become subject to any Lien, except for Permitted
Liens.
5. Location of Books and Records. The Subsidiary further represents and
warrants that it now keeps all of its records concerning its Accounts,
Contracts, Leases, Other Contracts, and Intangibles at its chief executive
office, except as listed on Schedule 3 hereto. The Subsidiary covenants and
agrees that it shall not keep any of such records at any other address, unless
written notice thereof is given to the Administrative Agent at least thirty (30)
days prior to the creation of any new address for the keeping of such records.
The Subsidiary further agrees that it shall promptly advise the Administrative
Agent, in writing making reference to this Section 5 of this Agreement, of the
opening of any material new place of business, the closing of any existing
material place of business, or any change in the location of the place where it
keeps the Collateral or of its chief executive officer.
6. Collateral Not Fixtures. The parties intend that, to the extent
permitted by Applicable Law, the Collateral, including, without limitation, all
communications towers, shall remain personal property irrespective of the manner
of its attachment or affixation to realty.
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7. Covenants Regarding Collateral. Any and all injury to, or loss or
destruction of, the Collateral shall be at the Subsidiary's risk, and shall not
release the Subsidiary from its obligations hereunder. The Subsidiary agrees not
to sell, transfer, assign, dispose of, mortgage, grant a security interest in,
or encumber any of the Collateral except as permitted under the Loan Agreement.
The Subsidiary agrees to maintain in force such insurance with respect to the
Collateral as is required under the Loan Agreement. The Subsidiary agrees to pay
all required taxes, liens, and assessments upon the Collateral, its use or
operation, as required under the Loan Agreement. The Subsidiary further agrees
that the Administrative Agent may, but shall in no event be obligated to,
following written notice to the Subsidiary, insure any of the Collateral in such
form and amount as the Administrative Agent may deem necessary or desirable if
the Subsidiary fails to obtain insurance as required by the Loan Agreement, and
that the Administrative Agent may pay or discharge any taxes if the Subsidiary
fails to pay such taxes as required by the Loan Agreement or Liens (which are
not Permitted Liens) on any of the Collateral, and the Subsidiary agrees to pay
any such sum so expended by the Administrative Agent, with interest at the
Default Rate, and such amounts shall be deemed to be a part of the Obligations
secured by the Collateral under the terms of this Agreement.
8. Covenants Regarding Contracts, Other Contracts and Leases. The
Subsidiary shall (a) fulfill, perform and observe each and every material
condition and covenant contained in any of the Contracts, the Other Contracts or
the Leases, other than those being contested in good faith or unless the other
party thereto is in default, (b) give prompt notice to the Administrative Agent
of any claim of material default under any Contract, Other Contract or Lease
given to the Subsidiary or by the Subsidiary other than those which in the
Subsidiary's reasonable business judgment are no longer in the best interest of
the Subsidiary to enforce and which have been previously approved by the
Administrative Agent, (c) at the sole cost and expense of the Subsidiary,
enforce the performance and observance of each and every material covenant and
condition of the Contracts, the Other Contracts and the Leases to which it is a
party other than those which in the Subsidiary's reasonable business judgment
are no longer in the best interest of the Subsidiary to enforce and which have
been previously approved by the Administrative Agent, and (d) appear in and
defend any action growing out of or in any manner connected with any Contract,
Other Contract or Lease to which it is a party. The rights and interests granted
to the Administrative Agent hereunder include all of the Subsidiary's rights and
title (i) to modify the Contracts, the Other Contracts and the Leases, (ii) to
terminate the Contracts, the Other Contracts and the Leases, and (iii) to waive
or release the performance or observance of any obligation or condition of the
Contracts, the Other Contracts and the Leases; provided, however, that the
Subsidiary shall have the right to exercise these rights in a fashion consistent
with this Agreement prior to any Event of Default and that these rights shall
not be exercised by the Administrative Agent prior to the occurrence and during
the continuation of an Event of Default.
9. Remedies. Upon the occurrence and during the continuation of an Event
of Default, the Secured Parties shall have such rights and remedies as are set
forth in the Loan Agreement, the other Loan Documents and herein, all the
rights, powers and privileges of a secured party under the Uniform Commercial
Code of the State of New York and any other applicable jurisdiction, and all
other rights and remedies available to the Secured Parties, or any
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of them, at law or in equity. The Subsidiary covenants and agrees that any
notification of intended disposition of any Collateral, if such notice is
required by law, shall be deemed reasonably and properly given if given in the
manner provided for in Section 19 hereof at least ten (10) days prior to such
disposition. Under such circumstances, the Secured Parties shall have the right
to the appointment of a receiver for the properties and assets of the
Subsidiary, and the Subsidiary hereby consents to such rights and to such
appointment and hereby waives any objection it may have thereto and hereby
waives the right to have a bond or other security posted by the Administrative
Agent or any other Person in connection therewith. The Subsidiary agrees, after
the occurrence of an Event of Default, to take any actions that the Secured
Parties may reasonably request in order to enable the Administrative Agent to
obtain and enjoy the full rights and benefits granted to the Administrative
Agent under this Agreement and the other Loan Documents. Without limiting the
generality of the foregoing, the Subsidiary shall, at the Subsidiary's cost and
expense, use its reasonable best efforts to assist in obtaining all approvals of
the FCC which are then required by law for or in connection with any action or
transaction contemplated by this Agreement or Article 9 of the UCC as in effect
in any applicable jurisdiction, and, at the Administrative Agent's request,
prepare, sign and file with the FCC the assignor's or transferor's portion of
any application or applications for consent to the assignment of the Licenses or
transfer of control thereof necessary or appropriate under the FCC's rules for
approval of any sale or transfer of the Administrative Agent's remedies under
this Agreement. The Administrative Agent shall have the right, in connection
with the issuance of any order for relief in a bankruptcy proceeding, to
petition the bankruptcy court for the transfer of control or assignment of the
Collateral to a receiver, trustee, transferee, or similar official or to any
purchaser of the Collateral pursuant to any public or private sale, foreclosure
or other exercise of remedies available to the Administrative Agent, all as
permitted by Applicable Law. All amounts realized or collected through the
exercise of remedies hereunder shall be applied to the Obligations as provided
in the Loan Agreement.
10. Notification of Account Debtors. Upon the occurrence and during the
continuation of an Event of Default, the Administrative Agent may notify the
account debtors that all payments with respect to Accounts are to be paid
directly to the Administrative Agent and any amount thereafter paid to the
Subsidiary shall be received in trust by the Subsidiary for the benefit of the
Administrative Agent and segregated from other funds of the Subsidiary and paid
over to the Administrative Agent in the form received (together with any
necessary endorsements).
11. Remedies of Administrative Agent. Upon the occurrence of an Event of
Default and during the continuation thereof, the Administrative Agent or its
designee may proceed to perform any and all of the obligations of the Subsidiary
contained in any of the Contracts, Other Contracts or Leases and exercise any
and all rights of the Subsidiary therein contained as fully as the Subsidiary
itself could. The Subsidiary hereby appoints the Administrative Agent its
attorney-in-fact, with power of substitution, to take such action, execute such
documents, and perform such work as the Administrative Agent may deem
appropriate in exercise of the rights and remedies granted the Secured Parties,
or any of them, herein or in any other Loan Document following written notice to
the Subsidiary. The powers herein granted shall include, without limitation,
powers to: (a) ▇▇▇ on the Contracts, the Other Contracts or the Leases; (b) seek
all
-7-
governmental approvals (other than FCC approvals) required for the operation of
the business of the Subsidiary; (c) modify or terminate the Contracts, the Other
Contracts and the Leases; and (d) waive or release the performance or observance
of any obligation under any of the Contracts, Other Contracts or Leases. The
power of attorney granted herein is coupled with an interest and shall be
irrevocable.
12. Additional Remedies. Upon the occurrence of an Event of Default and
during the continuation thereof, should the Subsidiary fail to perform or
observe any covenant or comply with any condition contained in any of the
Contracts, the Other Contracts or the Leases, then following written notice to
the Subsidiary, the Administrative Agent may, but without obligation to do so
and without releasing the Subsidiary from its obligation to do so, perform such
covenant or condition and, to the extent that the Administrative Agent shall
incur any reasonable costs or pay any expenses in connection therewith,
including, without limitation, any reasonable costs or expenses of litigation
associated therewith, such costs, expenses or payments shall be included in the
Obligations secured hereby and shall bear interest from the payment of such
costs or expenses by the Administrative Agent at the Default Rate. None of the
Secured Parties shall be obliged to perform or discharge any obligation of the
Subsidiary under any of the Contracts, the Other Contracts or the Leases, and,
except as may result from the bad faith, gross negligence or willful misconduct
of the Person seeking indemnification, the Subsidiary agrees to indemnify and
hold each Secured Party harmless against any and all liability, loss or damage
which any such Person may incur under any of the Contracts, the Other Contracts
or the Leases or under or by reason of this Agreement, and any and all claims
and demands whatsoever which may be asserted against the Subsidiary by reason of
an act of any Secured Party under any of the terms of this Agreement or under
the Contracts, the Other Contracts or the Leases.
13. Administrative Agent May Collect Accounts. The Subsidiary hereby
further appoints the Administrative Agent as its attorney-in-fact, with power of
substitution, with authority to collect all Accounts, to endorse the name of the
Subsidiary on any note, acceptance, check, draft, money order or other evidence
of debt or of payment which constitutes a portion of the Collateral and which
may come into the possession of the Secured Parties, or any of them, and
generally to do such other things and acts in the name of the Subsidiary with
respect to the Collateral as are necessary or appropriate to protect or enforce
the rights hereunder of the Secured Parties. The Subsidiary further authorizes
the Administrative Agent, effective upon the occurrence of an Event of Default
and during the continuation thereof, to compromise and settle or to sell, assign
or transfer or to ask, collect, receive or issue any and all claims possessed by
the Subsidiary which constitute a portion of the Collateral, all in the name of
the Subsidiary. After deducting all reasonable expenses and charges (including,
without limitation, the Administrative Agent's attorneys' fees) of retaking,
keeping, storing and selling the Collateral, the Administrative Agent may apply
the proceeds in payment of any of the Obligations in the order of application
set forth in the Loan Agreement. The power of attorney granted herein is coupled
with an interest and shall be irrevocable. The Subsidiary agrees that a failure
to so notify the Administrative Agent shall be a waiver and bar to any
subsequent claim for any such property. The Subsidiary agrees that if steps are
taken by the Administrative Agent to enforce its rights hereunder, or to realize
upon any of the Collateral, the Subsidiary shall pay to the Administrative Agent
the amount of the Administrative Agent's reasonable costs, including, without
limitation,
-8-
attorneys' fees, and the Subsidiary's obligation to pay such amounts shall be
deemed to be a part of the Obligations secured hereunder. Upon the occurrence
and during the continuation of an Event of Default, the Subsidiary shall
segregate all proceeds of any Collateral from other assets of the Subsidiary.
14. Indemnification. The Subsidiary shall indemnify and hold harmless each
Secured Party and any other Person acting hereunder for all losses, costs,
damages, fees and expenses whatsoever associated with the exercise of the powers
of attorney granted herein and shall release each Secured Party and any other
Person acting hereunder from all liability whatsoever for the exercise of the
foregoing powers of attorney and all actions taken pursuant thereto, except, in
either event, in the case of bad faith, gross negligence or willful misconduct
by the Person seeking indemnification.
15. Remedies Cumulative. The Subsidiary agrees that the rights of the
Secured Parties, or any of them, under this Agreement, the Loan Agreement, any
other Loan Document, or any other contract or agreement now or hereafter in
existence among the Secured Parties and the Subsidiary and the other obligors
thereunder, or any of them, shall be cumulative, and that each Secured Party may
from time to time exercise such rights and such remedies as such Person or
Persons may have thereunder and under the laws of the United States or any
state, as applicable, in the manner and at the time that such Person or Persons
in its or their sole discretion desire, subject to the terms of such agreements.
The Subsidiary further expressly agrees that the Secured Parties shall in no
event be under any obligation to resort to any Collateral secured hereby prior
to exercising any other rights that the Secured Parties, or any of them, may
have against the Subsidiary or its property, nor shall the Secured Parties be
obliged to resort to any other collateral or security for the Obligations, other
than the Collateral, prior to any exercise of the Administrative Agent's rights
against the Subsidiary and its property hereunder.
16. Obligations Commercial in Nature. The Subsidiary hereby acknowledges
that the Obligations arose out of a commercial transaction, and agrees that if
an Event of Default shall occur and be continuing, the Administrative Agent
shall, to the extent permitted by Applicable Law, have the right to immediate
possession without notice or a hearing, and hereby knowingly and intelligently
waives, to the extent permitted by Applicable Law, any and all rights it may
have to any notice and posting of a bond by the Secured Parties, or any of them,
prior to seizure by the Administrative Agent or any of its transferees, assigns
or successors in interest of the Collateral or any portion thereof.
17. Amendments and Waivers. No amendment, modification, waiver, transfer
or renewal, extension, assignment or termination of this Agreement or of the
Loan Agreements or of any other Loan Document, or of any instrument or document
executed and delivered by the Subsidiary or any other obligor to the Secured
Parties, or any of them, nor additional advances made by the Secured Parties, or
any of them, to the Borrowers, nor the taking of further security, nor the
retaking or re-delivery or release of the Collateral to the Subsidiary by the
Secured Parties, or any of them, nor any lack of validity or enforceability of
any Loan Document or any term thereof, nor any other act of the Secured Parties,
or any of them, shall release the Subsidiary from any Obligation, except a
release or discharge executed in writing by the Administrative
-9-
Agent in accordance with the Loan Agreement with respect to such Obligation or
upon full payment and satisfaction of all Obligations and termination of the
Commitment. None of the Secured Parties shall by any act, delay, omission or
otherwise, be deemed to have waived any of its or their rights or remedies
hereunder, unless such waiver is in writing and signed by the Administrative
Agent in accordance with the Loan Agreement and then only to the extent therein
set forth. A waiver by the Secured Parties, or any of them, of any right or
remedy on any occasion shall not be construed as a bar to the exercise of any
such right or remedy which any such Person would otherwise have had on any other
occasion.
18. Assignment. The Subsidiary agrees that this Agreement or the rights
hereunder may, in the discretion of the Secured Parties, or any of them, as
applicable, be assigned by the Secured Parties, or any of them, in whole or in
part in connection with any assignment of the Loan Agreement or the Obligations
arising thereunder, as permitted thereunder. In the event this Agreement or the
rights hereunder are so assigned by any of the Secured Parties, the terms
"Secured Parties" or "Administrative Agent" wherever used herein shall be
deemed, as applicable, to refer to and include any such assignee. This Agreement
may not be assigned by the Borrowers without the consent of the Administrative
Agent, but shall apply to and bind the respective successors and permitted
assigns of the Subsidiary and inure to the benefit of the successors and
permitted assigns of the Subsidiary.
19. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be given in a fashion prescribed in
Section 11.1 of the Loan Agreement with respect to the Secured Parties, and in
the fashion prescribed in Section 11.1 of the Loan Agreement with respect to the
Subsidiary to the address of the Borrowers set forth in or otherwise provided
pursuant to the Loan Agreement.
20. Governing Law. The provisions of this Agreement shall be construed and
interpreted, and all rights and obligations of the parties hereto determined, in
accordance with the internal laws of the State of New York applicable to
contracts made and to be performed in the State of New York. This Agreement,
together with all documents referred to herein, constitutes the entire agreement
among the Subsidiary and the Secured Parties with respect to the matters
addressed herein and may not be modified except by a writing executed by the
Administrative Agent and delivered to the Subsidiary.
21. Severability. If any paragraph or part thereof of this Agreement shall
for any reason be held or adjudged to be invalid, illegal or unenforceable by
any court of competent jurisdiction, such paragraph or part thereof so
adjudicated invalid, illegal or unenforceable shall be deemed separate, distinct
and independent, and the remainder of this Agreement shall remain in full force
and effect and shall not be affected by such holding or adjudication.
22. FCC Compliance. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Administrative Agent which may
require the consent or approval of the FCC, unless and until all requirements of
Applicable Law, including, without limitation any required approval under the
Communications Act, requiring the consent to or approval of such action by the
FCC or any governmental or other authority have been satisfied.
-10-
The Subsidiary covenants that, following and during the continuation of an Event
of Default, upon request of the Administrative Agent, it will cause to be filed
such applications and take such other action as may be reasonably requested by
the Administrative Agent to obtain consent or approval of the FCC to any action
contemplated by this Agreement and to give effect to the security interest of
the Administrative Agent, including, without limitation, the execution of an
application for consent by the FCC to an assignment or transfer involving a
change in ownership or control pursuant to the provisions of the Communications
Act.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
24. Changes in Applicable Law. The parties acknowledge their intent that,
upon the occurrence of an Event of Default and during the continuance thereof,
the Administrative Agent shall receive, to the fullest extent permitted by
Applicable Law and governmental policy (including, without limitation, the
rules, regulations and policies of the FCC), all rights necessary or desirable
to obtain, use or sell the Collateral and to exercise all remedies available to
it under this Agreement, the UCC as in effect in any applicable jurisdiction, or
other Applicable Law. The parties further acknowledge and agree that, in the
event of changes in law or governmental policy occurring subsequent to the date
hereof that affect in any manner the Administrative Agent's rights of access to,
or use or sale of, the Collateral, or the procedures necessary to enable the
Administrative Agent to obtain such rights of access, use or sale, the
Administrative Agent and the Subsidiary shall amend this Agreement in such
manner as the Administrative Agent shall reasonably request in order to provide
the Administrative Agent such rights to the greatest extent possible consistent
with Applicable Law and governmental policy.
25. Administrative Agent. Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Administrative Agent" shall
be a reference to the Administrative Agent for the benefit of all the Secured
Parties, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of all the Secured Parties.
26. Jurisdiction and Venue. If any action or proceeding shall be brought
by the Administrative Agent in order to enforce any right or remedy under this
Agreement, the Subsidiary hereby consents to the jurisdiction of any state or
federal court of competent jurisdiction sitting within the area comprising the
Southern District of New York on the date of this Agreement. The Subsidiary
hereby agrees, to the extent permitted by Applicable Law that service of the
summons and complaint and all other process which may be served in any such
suit, action or proceeding may be effected by mailing by registered mail a copy
of such process to the offices of the Borrowers, as set forth in or otherwise
provided pursuant to Section 11.1 of the Loan Agreement, and that personal
service of process shall not be required. Nothing herein shall be construed to
prohibit service of process by any other method permitted by law, or the
bringing of any suit, action or proceeding in any other jurisdiction. The
Subsidiary agrees that final judgment in such suit, action or proceeding shall
be conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by Applicable Law.
-11-
27. WAIVER OF JURY TRIAL. THE SUBSIDIARY WAIVES ANY RIGHT TO A TRIAL BY
JURY IN ANY PROCEEDING ARISING OUT OF THIS AGREEMENT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-12-
IN WITNESS WHEREOF, the undersigned have hereunto set their hands, by and
through their duly authorized representatives, on the day and year first written
above.
SUBSIDIARY: ______________, a ______________
By:_____________________________________
Name:________________________________
Its:_________________________________
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:_____________________________________
Name:________________________________
Its:_________________________________
SECOND AMENDED AND RESTATED LOAN AGREEMENT
SUBSIDIARY SECURITY AGREEMENT
Signature Page
EXHIBIT G
TERM LOAN A PROMISSORY NOTE
$
-------------------- --------, -----
FOR VALUE RECEIVED, the undersigned, American Tower, L.P., a Delaware
limited partnership ("AT LP"), American Towers, Inc., a Delaware corporation
("AT Inc."), Towersites Monitoring, Inc., a Delaware corporation ("Towersites"),
American Tower International, Inc., a Delaware corporation ("AT International")
and American Tower LLC, a Delaware limited liability company (collectively, with
AT LP, AT Inc., Towersites and AT International, the "Borrowers"), promise to
pay, on a joint and several basis, to the order of
-------------------
(hereinafter, together with its successors and assigns, called the "Lender"), in
immediately available funds, at such place as is designated in or pursuant to
the Loan Agreement (as hereinafter defined), the principal sum of
AND /100s DOLLARS ($_________________) of United States
---------------------- --
funds, or, if less, so much thereof as may from time to time be advanced by the
Lender to the Borrowers and is outstanding hereunder, plus interest as
hereinafter provided. Such advances and repayments thereof may be endorsed from
time to time on the grid attached hereto, but the failure to make such notations
(or any error in such notation) shall not affect the obligation of the Borrowers
to repay, on a joint and several basis, unpaid principal and interest hereunder.
Except as otherwise defined or limited herein, capitalized terms used
herein shall have the meanings ascribed to them in that certain Second Amended
and Restated Loan Agreement dated as of February 21, 2003 (as amended, modified,
restated or supplemented from time to time, the "Loan Agreement") among the
Borrowers, the Lender, the other financial institutions party thereto (together
with the Lender, the "Lenders"), the Issuing Bank (as defined therein) and
Toronto Dominion (Texas), Inc., as administrative agent (in such capacity, the
"Administrative Agent").
The principal amount of this Term Loan A Note shall be paid in such amounts
and at such times as are set forth in Sections 2.5 and 2.7 of the Loan
Agreement. A final payment of all principal amounts and other Obligations then
outstanding hereunder shall be due and payable in full on the Term Loan A
Maturity Date.
The Borrowers shall be entitled to borrow, repay, Continue and Convert
amounts due hereunder pursuant to the terms and conditions of the Loan
Agreement. Prepayment of the principal amount hereof may be made only as
provided in the Loan Agreement.
The Borrowers hereby promise to pay, on a joint and several basis, interest
on the unpaid principal amount of the Term Loan A Loans outstanding hereunder as
provided in the Loan Agreement. Interest under this Term Loan A Note shall also
be due and payable when this Term
Loan A Note shall become due (whether at maturity, by reason of acceleration or
otherwise). Overdue principal and, to the extent permitted by Applicable Law,
overdue interest under this Term Loan A Note, shall bear interest at the Default
Rate as provided in the Loan Agreement.
No provision of the Loan Agreement or this Term Loan A Note shall require
the payment or permit the collection of interest in excess of that permitted by
Applicable Law. If any excess amount of interest in such respect is provided
for, or shall be adjudicated to be so provided for, in connection with the Term
Loan A Loans outstanding hereunder, the provisions of this paragraph shall
govern and prevail, and none of the Borrowers nor any sureties, guarantors,
successors or assigns of the Borrowers shall be obligated to pay the excess
amount of such interest or any other excess sum paid for the use, forbearance,
or detention of sums loaned pursuant hereto. In the event the Borrowers ever
pay, or the Lender ever receives, collects or applies as interest any such sum,
such amount which would be in excess of the maximum amount permitted by
Applicable Law shall be applied as a payment in the reduction of the principal,
unless the Borrowers shall notify the Lender in writing that it elects to have
such excess returned forthwith; and, if the principal has been paid in full, any
remaining excess shall forthwith be returned to the Borrowers. Because of the
variable nature of the rates of interest applicable to the Term Loan A Loans
evidenced by this Term Loan A Note, the total interest that will accrue hereon
cannot be determined in advance. None of the Borrowers nor the Lender intends
for the Lender to contract for, charge or receive usurious interest and, to
prevent such an occurrence, any agreements which may now or hereafter be in
effect among the Borrowers and the Lender regarding the payment of fees to the
Lender are hereby limited by the provisions of this paragraph. To the extent not
prohibited by Applicable Law, determination of the legal maximum amount of
interest shall at all times be made by amortizing, prorating or allocating all
interest at any time contracted for, charged or received from the Borrowers in
connection with the portion of the Term Loan A Loans outstanding hereunder until
the Term Loan A Maturity Date, so that the actual rate of interest on account of
the Term Loan A Loans outstanding hereunder does not exceed the maximum amount
permitted under Applicable Law.
All parties now or hereafter liable with respect to this Term Loan A Note,
whether the Borrowers, any guarantor, endorser or any other Person, hereby waive
to the extent permitted by Applicable Law presentment for payment, demand,
notice of nonpayment or dishonor, protest and notice of protest.
No delay or omission on the part of the Lender or any holder hereof in
exercising its rights under this Term Loan A Note, or delay or omission on the
part of the Lender, the Administrative Agent or the Lenders collectively, in
exercising its or their rights under the Loan Agreement or any other Loan
Documents, or course of conduct relating thereto, shall operate as a waiver of
such right or any other right of the Lender or any holder hereof, nor shall any
waiver by the Lender, the Administrative Agent or the Lenders collectively, or
any holder hereof, of any such right or rights on any one occasion be deemed a
bar to, or waiver of, the same right or rights on any future occasion.
-2-
The Borrowers promise to pay, on a joint and several basis, all reasonable
costs of collection, including, without limitation, attorneys' fees, should this
Term Loan A Note be collected by or through an attorney-at-law or under advice
therefrom.
Time is of the essence of this Term Loan A Note.
This Term Loan A Note evidences the Lender's portion of the Term Loan A
Loans under, and is entitled to the benefits and subject to the terms of, the
Loan Agreement which contains provisions with respect of the acceleration of the
maturity of this Term Loan A Note upon the happening of certain stated events
and provisions for prepayment. This Term Loan A Note is secured by and is also
entitled to the benefits of the Security Documents.
This Term Loan A Note shall be construed in accordance with and governed by
the internal laws of the State of New York applicable to contracts made and to
be performed in the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
IN WITNESS WHEREOF, the Borrowers have executed this Term Loan A Note on
the day and year first above written.
AMERICAN TOWERS, INC., a Delaware corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
AMERICAN TOWER, L.P., a Delaware limited partnership
By: ATC GP Inc., a Delaware corporation, its General
Partner
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
TOWERSITES MONITORING, INC., a Delaware corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
AMERICAN TOWER INTERNATIONAL, INC., a
Delaware corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
AMERICAN TOWER LLC, a Delaware limited liability
company
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
EXHIBIT H
TERM LOAN B PROMISSORY NOTE
$
-------------------- -----------, ----
FOR VALUE RECEIVED, the undersigned, American Tower, L.P., a Delaware
limited partnership ("AT LP"), American Towers, Inc., a Delaware corporation
("AT Inc."), Towersites Monitoring, Inc., a Delaware corporation ("Towersites"),
American Tower International, Inc., a Delaware corporation ("AT International")
and American Tower LLC, a Delaware limited liability company (collectively, with
AT LP, AT Inc., Towersites and AT International, the "Borrowers"), promise to
pay, on a joint and several basis, to the order of
-----------------------------
(hereinafter, together with its successors and assigns, called the "Lender"), in
immediately available funds, at such place as is designated in or pursuant to
the Loan Agreement (as hereinafter defined), the principal sum of
AND /100s DOLLARS ($_________________) of United States
---------------------- --
funds.
Except as otherwise defined or limited herein, capitalized terms used
herein shall have the meanings ascribed to them in that certain Second Amended
and Restated Loan Agreement dated as of February 21, 2003 (as amended, modified,
restated or supplemented from time to time, the "Loan Agreement") among the
Borrowers, the Lender, the other financial institutions party thereto (together
with the Lender, the "Lenders"), the Issuing Bank (as defined therein) and
Toronto Dominion (Texas), Inc., as administrative agent (in such capacity, the
"Administrative Agent").
The principal amount of this Term Loan B Note shall be paid in such amounts
and at such times as are set forth in Sections 2.5 and 2.7 of the Loan
Agreement. A final payment of all principal amounts and other Obligations then
outstanding hereunder shall be due and payable in full on the Term Loan B
Maturity Date.
The Borrowers shall be entitled to borrow, repay, Continue and Convert
amounts due hereunder pursuant to the terms and conditions of the Loan
Agreement. Prepayment of the principal amount hereof may be made only as
provided in the Loan Agreement.
The Borrowers hereby promise to pay, on a joint and several basis, interest
on the unpaid principal amount of the Term Loan B Loans outstanding hereunder as
provided in the Loan Agreement. Interest under this Term Loan B Note shall also
be due and payable when this Term Loan B Note shall become due (whether at
maturity, by reason of acceleration or otherwise). Overdue principal and, to the
extent permitted by Applicable Law, overdue interest under this Term Loan B
Note, shall bear interest at the Default Rate as provided in the Loan Agreement.
No provision of the Loan Agreement or this Term Loan B Note shall require
the payment or permit the collection of interest in excess of that permitted by
Applicable Law. If any excess amount of interest in such respect is provided
for, or shall be adjudicated to be so provided for, in connection with the Term
Loan B Loans outstanding hereunder, the provisions of this paragraph shall
govern and prevail, and none of the Borrowers nor any sureties, guarantors,
successors or assigns of the Borrowers shall be obligated to pay the excess
amount of such interest or any other excess sum paid for the use, forbearance,
or detention of sums loaned pursuant hereto. In the event the Borrowers ever
pay, or the Lender ever receives, collects or applies as interest any such sum,
such amount which would be in excess of the maximum amount permitted by
Applicable Law shall be applied as a payment in the reduction of the principal,
unless the Borrowers shall notify the Lender in writing that it elects to have
such excess returned forthwith; and, if the principal has been paid in full, any
remaining excess shall forthwith be returned to the Borrowers. Because of the
variable nature of the rates of interest applicable to the Term Loan B Loans
evidenced by this Term Loan B Note, the total interest that will accrue hereon
cannot be determined in advance. None of the Borrowers nor the Lender intends
for the Lender to contract for, charge or receive usurious interest and, to
prevent such an occurrence, any agreements which may now or hereafter be in
effect among the Borrowers and the Lender regarding the payment of fees to the
Lender are hereby limited by the provisions of this paragraph. To the extent not
prohibited by Applicable Law, determination of the legal maximum amount of
interest shall at all times be made by amortizing, prorating or allocating all
interest at any time contracted for, charged or received from the Borrowers in
connection with the portion of the Term Loan B Loans outstanding hereunder until
the Term Loan B Maturity Date, so that the actual rate of interest on account of
the Term Loan B Loans outstanding hereunder does not exceed the maximum amount
permitted under Applicable Law.
All parties now or hereafter liable with respect to this Term Loan B Note,
whether the Borrowers, any guarantor, endorser or any other Person, hereby waive
to the extent permitted by Applicable Law presentment for payment, demand,
notice of nonpayment or dishonor, protest and notice of protest.
No delay or omission on the part of the Lender or any holder hereof in
exercising its rights under this Term Loan B Note, or delay or omission on the
part of the Lender, the Administrative Agent or the Lenders collectively, in
exercising its or their rights under the Loan Agreement or any other Loan
Documents, or course of conduct relating thereto, shall operate as a waiver of
such right or any other right of the Lender or any holder hereof, nor shall any
waiver by the Lender, the Administrative Agent or the Lenders collectively, or
any holder hereof, of any such right or rights on any one occasion be deemed a
bar to, or waiver of, the same right or rights on any future occasion.
The Borrowers promise to pay, on a joint and several basis, all reasonable
costs of collection, including, without limitation, attorneys' fees, should this
Term Loan B Note be collected by or through an attorney-at-law or under advice
therefrom.
-2-
Time is of the essence of this Term Loan B Note.
This Term Loan B Note evidences the Lender's portion of the Term Loan B
Loans under, and is entitled to the benefits and subject to the terms of, the
Loan Agreement which contains provisions with respect of the acceleration of the
maturity of this Term Loan B Note upon the happening of certain stated events
and provisions for prepayment. This Term Loan B Note is secured by and is also
entitled to the benefits of the Security Documents.
This Term Loan B Note shall be construed in accordance with and governed by
the internal laws of the State of New York applicable to contracts made and to
be performed in the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
IN WITNESS WHEREOF, the Borrowers have executed this Term Loan B Note on
the day and year first above written.
AMERICAN TOWERS, INC., a Delaware corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
AMERICAN TOWER, L.P., a Delaware limited partnership
By: ATC GP Inc., a Delaware corporation, its General
Partner
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
TOWERSITES MONITORING, INC., a Delaware corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
AMERICAN TOWER INTERNATIONAL, INC., a
Delaware corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
AMERICAN TOWER LLC, a Delaware limited liability
company
By:
-------------------------------------------------
Name:
--------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Title:
-------------------------------------------
-2-
EXHIBIT I
LOAN CERTIFICATE
OF
AMERICAN TOWER LLC
The undersigned, , the duly elected and authorized
-----------------
of AMERICAN TOWER LLC, a Delaware limited liability company
--------------------
(the "Borrower"), hereby agrees that, unless otherwise defined herein,
capitalized terms shall have the meaning ascribed thereto in that certain Second
Amended and Restated Loan Agreement (the "Loan Agreement") dated as of February
21, 2003 by and among the Borrower, American Tower, L.P., a Delaware limited
partnership, Towersites Monitoring, Inc., a Delaware corporation, American
Towers, Inc., a Delaware corporation, American Tower International, Inc., a
Delaware corporation and the Lenders, the Issuing Bank and the Administrative
Agent (each as defined therein) and further hereby certifies, that:
1. The persons named in Schedule 1 attached hereto are, on the date hereof,
the duly elected officers of the Borrower holding the office(s) set opposite
their respective names, and the signatures set opposite their respective names
are the true signatures of said officers.
2. Exhibit A attached hereto is a true and complete copy of the resolutions
duly adopted by the Board of Directors of the Borrower; and such resolutions
have not been amended, modified or rescinded and remain in full force and effect
as of the date hereof.
3. Exhibit B attached hereto is a true and complete copy of the Certificate
of Formation of the Borrower and all amendments thereto in effect on the date
hereof.
4. Exhibit C attached hereto is a true and complete copy of the Operating
Agreement of the Borrower together with all amendments thereto as of the date
hereof.
5. Exhibit D attached hereto are true, complete and correct copies of
certificates of good standing for the Borrower from the Secretary of State for
the State of Delaware and for each other jurisdiction in which the Borrower is
required to qualify to do business in order to transact the business which it
transacts in such jurisdiction in accordance with Applicable Law, except where
failure to be so qualified could not reasonably be expected to have a Materially
Adverse Effect. The Borrower has, from the dates of such certificates, remained
in good standing under the laws of such states.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has executed this Loan Certificate on
the 21st day of February, 2003.
AMERICAN TOWER LLC, a Delaware limited liability
company
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
-2-
SECOND AMENDED AND RESTATED LOAN AGREEMENT
SCHEDULE 1
Authorized Signatories
Name Office Signature
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
-3-
SECOND AMENDED AND RESTATED LOAN AGREEMENT
EXHIBIT J
RESTRICTED SUBSIDIARY LOAN CERTIFICATE
The undersigned, , the duly elected and authorized
-----------------
of [NAME OF RESTRICTED SUBSIDIARY], a
-------------------- --------------------
(the "Subsidiary"), hereby agrees that, unless otherwise defined herein,
capitalized terms shall have the meanings ascribed thereto in that certain
Second Amended and Restated Loan Agreement (the "Loan Agreement") dated February
21, 2003 by and among American Towers, Inc., a Delaware corporation, American
Tower, L.P., a Delaware limited partnership, Towersites Monitoring, Inc., a
Delaware corporation, American Tower International, Inc., a Delaware
corporation, American Tower LLC, a Delaware limited liability company, the
Lenders, the Issuing Lender and the Administrative Agent (each as defined
therein) and further hereby certifies, that:
1. The persons named in Schedule 1 attached hereto are, on and as of the
date hereof, the duly elected officers of the Subsidiary holding the office(s)
set opposite their respective names, and the signatures set opposite their
respective names are the true signatures of said officers.
2. Exhibit A attached hereto is a true and complete copy of the resolutions
duly adopted by the [Board of Directors/Board of Managers or Members] of the
Subsidiary; and such resolutions have not been amended, modified or rescinded
and remain in full force and effect on the date hereof.
3. Exhibit B attached hereto is a true and complete copy of the
[Certificate of Incorporation/Certificate of Formation or equivalent document]
of the Subsidiary and all amendments thereto in effect on the date hereof.
4. Exhibit C attached hereto is a true and complete copy of the By-Laws, if
applicable, of the Subsidiary together with all amendments thereto as of the
date hereof.
5. Exhibit D attached hereto are true, complete and correct copies of
certificates of good standing for the Subsidiary from the Secretary of State for
the State of and for each other jurisdiction in which the Subsidiary
---------
is required to qualify to do business in order to transact the business which it
transacts in such jurisdiction in accordance with Applicable Law, except where
failure to be so qualified could not reasonably be expected to have a Materially
Adverse Effect. The Subsidiary has, from the dates of such certificates,
remained in good standing under the laws of such states.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the undersigned have executed this Loan Certificate of
[Name of Subsidiary] on the day of , .
---- ---------- ----
[NAME OF SUBSIDIARY]
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
SCHEDULE 1
Authorized Signatories
Name Office Signature
---- ------ ---------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
------------------------ ------------------------ ------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
EXHIBIT K
PERFORMANCE CERTIFICATE
The undersigned hereby certify that he or she is the Chief Financial
Officer of American Towers, Inc., a Delaware corporation, American Tower, L.P.,
a Delaware limited partnership, Towersites Monitoring, Inc., a Delaware
corporation, American Tower International, Inc., a Delaware corporation and
American Tower LLC, a Delaware limited liability company (collectively, the
"Borrowers"). In connection with that certain Second Amended and Restated Loan
Agreement dated as of February 21, 2003 (as amended, modified, restated or
supplemented from time to time, and as in effect on the date hereof, the "Loan
Agreement") by and among the Borrowers, the Lenders, the Issuing Bank (each as
defined in the Loan Agreement) and Toronto Dominion (Texas), Inc., as
administrative agent (in such capacity, the "Administrative Agent"), the
undersigned does hereby certify, as the Chief Financial Officer of and on behalf
of the Borrowers, that:
1. Calculations demonstrating the interest rate adjustment, as provided
for in Section 2.3(f) of the Loan Agreement, for the [quarter/year]
ended , , are set forth on Schedule 1 attached
-------------- ----
hereto;
2. Calculations demonstrating compliance with Sections 7.8, 7.9, 7.10,
7.11 and 7.15 of the Loan Agreement are set forth on Schedule 2
attached hereto; and
3. To the knowledge of the undersigned after due inquiry of other
officers of each of the Borrowers, no Default or Event of Default has
occurred during or as at the end of such [quarter/year].
4. A list of all Acquisitions, Investments (other than those made
pursuant to Section 7.6(a) of the Loan Agreement), Restricted
Payments, dispositions of assets (other than dispositions of assets in
the ordinary course of business) and any outstanding Capitalized Lease
Obligations from the date of the most recently delivered prior
Performance Certificate through the date of such certificate together
with the total amount for each of the foregoing categories is set
forth on Schedule 3 attached hereto.
5. The amount of distributions received from Unrestricted Subsidiaries
during such [quarter/year] is as set forth on Schedule 4 attached
hereto.
Capitalized terms used herein and not otherwise defined are used as defined
in the Loan Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, we have executed this Performance Certificate on
, .
------------------ ----
AMERICAN TOWERS, INC., a Delaware corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Chief Financial Officer
AMERICAN TOWER, L.P., a Delaware limited
partnership
By: ATC GP Inc., a Delaware corporation and its
General Partner
By:
-------------------------------------------------
Name:
--------------------------------------------
Chief Financial Officer
TOWERSITES MONITORING, INC., a Delaware corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Chief Financial Officer
AMERICAN TOWER INTERNATIONAL, INC., a Delaware
corporation
By:
-------------------------------------------------
Name:
--------------------------------------------
Chief Financial Officer
AMERICAN TOWER LLC, a Delaware limited liability
company
By:
-------------------------------------------------
Name:
------------------------------------------
Chief Financial Officer
SECOND AMENDED AND RESTATED LOAN AGREEMENT
EXHIBIT L
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is made and entered into on
, , by and between
------------ ---- ---- ----------------------------------------
(the "Assignor"), and (the
----------------------------------------------
"Assignee").
Recitals
A. American Towers, Inc., a Delaware corporation, American Tower, L.P., a
Delaware limited partnership, Towersites Monitoring, Inc., a Delaware
corporation, American Tower International, Inc., a Delaware corporation and
American Tower LLC, a Delaware limited liability company (collectively, the
"Borrowers"), the Assignor and certain other financial institutions (together
with any other person which becomes a `Lender' under the Loan Agreement, as such
term is hereinafter defined, the "Lenders"), the Issuing Bank (as defined in the
Loan Agreement) and Toronto Dominion (Texas), Inc., as administrative agent (in
such capacity, the "Administrative Agent"), are parties to a certain Second
Amended and Restated Loan Agreement dated February 21, 2003 (as amended,
modified, restated or supplemented from time to time, and as in effect on the
date hereof, the "Loan Agreement"). Pursuant to the Loan Agreement, the Lenders
have agreed to extend credit to the Borrowers under the Commitments, of which
the Assignor's portions of the Commitments is the amount specified in Item 1 of
Schedule 1 hereto (the "Assignor's Commitments"). The principal amount of
outstanding Loans made by the Assignor to the Borrowers pursuant to the
Assignor's Commitments is specified in Item 2 of Schedule 1 hereto (the
"Assignor's Loans"). All capitalized terms not otherwise defined herein are used
herein as defined in the Loan Agreement.
B. The Assignor wishes to sell and assign to the Assignee, and the Assignee
wishes to purchase and assume from the Assignor, (a) the portions of the
Assignor's Revolving Loan Commitment specified in Item 3 of Schedule 1 hereto
which is equivalent to the percentages of such Commitments specified in Item 4
of Schedule 1 (the "Assigned Commitments"), and (b) the portions of the
Assignor's [Revolving Loans/Term Loan A Loans/Term Loan B Loans] under the
Commitments specified in Item 5 of Schedule 1 hereto (the "Assigned Loans").
The parties agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein, the
Assignor hereby sells and assigns to the Assignee, and the Assignee purchases
and assumes from the Assignor, without recourse to the Assignor, on the date set
forth above (the "Assignment Date") (a) all right, title, and interest of the
Assignor to the Assigned Loans and (b) all obligations of the Assignor under the
Loan Agreement with respect to the Assigned Commitments. As full consideration
for the sale of the Assigned Loans and Assigned Commitments, the Assignee shall
pay to the Assignor on the Assignment Date such amount as shall have been agreed
to between the Assignor and the Assignee (the "Purchase Price").
2. Consents and Undertaking. The Administrative Agent and the Borrowers
hereby consent to the assignment made herein (to the extent required under the
Loan Agreement), and the Borrowers undertake within five (5) Business Days from
the Assignment Date to provide new promissory notes to the Administrative Agent,
for the benefit of the Assignee and the Assignor, as appropriate to reflect the
portions of the Commitments held by each of the Assignee and the Assignor after
giving effect to the assignment contemplated by this Agreement. The Assignor
agrees on the Business Day following receipt by the Administrative Agent of the
new promissory notes, to return its superseded promissory notes to the
Administrative Agent, which shall thereupon transmit the new promissory notes to
the Assignor and the Assignee and the superseded promissory notes to the
Borrowers for cancellation.
3. Representations and Warranties. Each of the Assignor and the Assignee
represents and warrants to the other that (a) it has full power and legal right
to execute and deliver this Agreement and to perform the provisions of this
Agreement; (b) the execution, delivery, and performance of this Agreement have
been authorized by all necessary action, corporate or otherwise, on its part and
do not violate any provisions of its charter or by-laws or any contractual
obligations or requirement of law binding on it; and (c) this Agreement
constitutes its legal, valid and binding obligation, enforceable against it in
accordance with its terms subject, as to enforcement of remedies, to the
following qualifications: (i) an order of specific performance and an injunction
are discretionary remedies and, in particular, may not be available where
damages are considered an adequate remedy at law, and (ii) enforcement may be
limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction
and other similar laws affecting enforcement of creditors' rights generally
(insofar as any such law relates to the bankruptcy, insolvency or similar event
of the Assignee or the Assignor, as the case may be). The Assignee represents
and warrants to the Assignor that its purchase of the Assigned Loans and the
Assigned Commitments does not constitute a "prohibited transaction" as defined
in Section 4.1(m) of the Loan Agreement. The Assignor represents and warrants
that it is legally authorized to enter into and deliver this Agreement and
represents that it is the legal and beneficial owner of the Assigned Loans and
the Assigned Commitments and that such Assigned Loans and Commitments are free
and clear of any adverse claim.
4. Condition Precedent. The obligations of the Assignor and the Assignee
hereunder shall be subject to the fulfillment of the condition that (a) the
Assignor shall have received payment in full of the Purchase Price and (b) the
Assignor and the Assignee shall have complied with other applicable provisions
of Section 11.5(c) of the Loan Agreement.
5. Notice of Assignment. The Assignor hereby gives notice of the assignment
and assumption of the Assigned Loans and the Assigned Commitments to the
Administrative Agent and hereby instructs the Borrowers to make payments with
respect to the Assigned Loans and the Assigned Commitments directly to the
Administrative Agent for the benefit of the Assignee as provided in the Loan
Agreement; provided, however, that the Borrowers and the Administrative Agent
shall be entitled to continue to deal solely and directly with the Assignor in
connection
-2-
with the interests so assigned until (a) the Administrative Agent shall have
received a copy of this Assignment and Assumption Agreement duly executed by the
Assignor, the Assignee, and the Borrowers (to the extent required under the Loan
Agreement), and shall have received the assignment fee described in Section
11.5(c)(iii) of the Loan Agreement, and (b) the Assignor shall have delivered to
the Administrative Agent its promissory notes. From and after the date (the
"Effective Date") on which the Administrative Agent shall notify the Borrowers,
the Assignee and the Assignor that (a) and (b) have occurred and all consents
(if any) required have been given, the Assignee shall be deemed to be a party to
the Loan Agreement and, to the extent that rights and obligations thereunder
shall have been assigned to Assignee as provided herein, shall have the rights
and obligations of a Lender under the Loan Agreement. After the Effective Date,
and with respect to all such amounts accrued from the Assignment Date, (i) all
interest, principal, fees, and other amounts that would otherwise be payable to
the Assignor in respect of the Assigned Loans or the Assigned Commitments shall
be paid to the Assignee, (ii) if the Assignor receives any payment on account of
the Assigned Loans or the Assigned Commitments that is payable to the Assignee,
the Assignor shall promptly deliver such payment to the Assignee, and (iii) if
the Assignee receives any payment in respect of Obligations of the Borrowers
accrued prior to the Effective Date, then the Assignee shall pay over the same
to the Assignor. The Assignee agrees to deliver to the Borrowers and the
Administrative Agent on or before the Effective Date such Internal Revenue
Service forms as may be required to establish that the Assignee is entitled to
receive payments under the Loan Agreement without deduction or withholding of
tax.
6. Authorization; Independent Investigation. The Assignee acknowledges that
it is purchasing the Assigned Loans and the Assigned Commitments from the
Assignor without recourse and, except as provided in Section 3 hereof, without
representation or warranty. The Assignee further acknowledges that it has made
its own independent investigation and credit evaluation of the Borrowers in
connection with its purchase of the Assigned Loans and the Assigned Commitments
and has received copies of all Loan Documents that it has requested. Except for
the representations or warranties set forth in Section 3 hereof, the Assignee
acknowledges that it is not relying on any representation or warranty of the
Assignor, expressed or implied, including without limitation, any representation
or warranty relating to the legality, validity, genuineness, enforceability,
collectibility, interest rate, repayment schedule, or accrual status of the
Assigned Loans and the Assigned Commitments, the legality, validity,
genuineness, or enforceability of the Loan Agreement, the Notes, or any other
Loan Document referred to in, or delivered pursuant to, the Loan Agreement or
the financial condition or creditworthiness of the Borrowers. The Assignor has
not acted and will not be acting as either the representative, agent or trustee
of the Assignee with respect to matters arising out of or relating to the Loan
Agreement or this Agreement. From and after the Effective Date, the Assignor
shall have no rights or obligations with respect to the Assigned Loans and the
Assigned Commitments.
7. Method of Payment. All payments to be made by the Assignor or the
Assignee party hereunder shall be in funds available at the place of payment on
the same day and shall be made by wire transfer to the account designated by the
party to receive payment.
-3-
8. Integration. This Agreement shall supersede any prior agreement or
understanding between the parties (other than the Loan Agreement or other Loan
Documents) as to the subject matter hereof.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon the parties, their successors and assigns.
10. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York applicable to
contracts made and to be performed in New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-4-
IN WITNESS WHEREOF, the Assignor and Assignee have executed and delivered
this Agreement on the date first above written.
[ASSIGNOR]
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
[ASSIGNEE]
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
[Agreed and Accepted (to the extent required under the Loan Agreement):
AMERICAN TOWERS, INC., a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
AMERICAN TOWER, L.P., a Delaware limited partnership
By: ATC GP INC., a Delaware corporation
and its General Partner
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
TOWERSITES MONITORING, INC., a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
AMERICAN TOWER INTERNATIONAL, INC., a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
AMERICAN TOWER LLC, a Delaware limited liability company
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Acknowledged:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
-2-
SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Second Amended and Restated Loan Agreement
for American Towers, Inc.,
American Tower, L.P.,
Towersites Monitoring, Inc.,
American Tower International, Inc. and
American Tower LLC
dated February 21, 2003
Item 1. Assignor's Commitments:
as to the Revolving Loan Commitment $
------------
Item 2. Assignor's Loans Outstanding:
with respect to Revolving Loans:
(i) Base Rate Advances $
------------
(ii) LIBOR Advances $
------------
with respect to Term Loan A Loans:
(i) Base Rate Advance $
------------
(ii) LIBOR Advance $
------------
with respect to Term Loan B Loans:
(i) Base Rate Advances $
------------
(ii) LIBOR Advances $
------------
Item 3. Amounts of Assigned Commitments
with respect to:
(i) Revolving Loan Commitment $
------------
Item 4. Percentages of Commitments Assigned
with respect to:
Revolving Loan Commitment %
------------
SECOND AMENDED AND RESTATED LOAN AGREEMENT
Item 5. Amount of Assigned Loans:
with respect to Revolving Loans:
(a) Base Rate Advances $
------------
(b) LIBOR Advances $
------------
with respect to Term Loan A Loans:
(a) Base Rate Advance $
------------
(b) LIBOR Advance $
------------
with respect to Term Loan B Loans:
(a) Base Rate Advances $
------------
(b) LIBOR Advances $
------------
Item 6. Lending Office of Assignee
-----------------------
and Address for Notices
-----------------------
under Loan Agreement
-----------------------
-4-