EXHIBIT 10.4
EXECUTION VERSION
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of August 14, 2002, by and among SpectraSite
Communications, Inc., a Delaware corporation (the "Borrower"), SpectraSite
Holdings, Inc., a Delaware corporation ("Holdco"), Canadian Imperial Bank of
Commerce, as administrative agent (the "Administrative Agent") and the other
Credit Parties signatory hereto (the "Credit Parties").
W I T N E S S E T H:
WHEREAS, the Borrower, Holdco, the Administrative Agent and the Credit
Parties are parties to that certain Amended and Restated Credit Agreement dated
as of February 22, 2001, as amended by that certain First Amendment to Amended
and Restated Credit Agreement dated as of October 31, 2001 (as further amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, Holdco, CIBC World Markets Corp. and Credit
Suisse First Boston, as joint lead arrangers and bookrunners (the "Lead
Arrangers"), CIBC World Markets Corp., Credit Suisse First Boston, Bank of
Montreal, Chicago Branch and TD Securities (USA) Inc., as arrangers (the
"Arrangers"), Credit Suisse First Boston, as syndication agent (the "Syndication
Agent"), Bank of Montreal, Chicago Branch and TD Securities (USA) Inc., as
co-documentation agents (the "Documentation Agents"), the Administrative Agent
and the other Credit Parties (as defined in the Credit Agreement) party thereto;
and
WHEREAS, the Borrower has requested, and the Administrative Agent and
the Credit Parties have agreed, to amend the Credit Agreement as and to the
extent set forth herein; and
NOW THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree that all capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement, as amended hereby, except as otherwise defined
or limited herein, and further agree, subject to the conditions precedent to
this Amendment hereinafter set forth, as follows:
1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions, is hereby
modified and amended by adding the following definitions in appropriate
alphabetical order:
"'Acceptable Restructuring Plan' shall mean a plan of
reorganization, recapitalization or restructuring proposed by Holdco,
whether effected through the Chapter 11 Case or on an out-of-court
basis, providing for the restructuring of the debt and capital
structure of Holdco with respect to which plan, recapitalization or
restructuring the Borrower shall have delivered to each of the Credit
Parties updated
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Projections, in form and substance reasonably satisfactory to the
Arrangers (provided that, such updated Projections shall be deemed to
be reasonably satisfactory if (x) such plan, recapitalization or
restructuring shall have been confirmed by the court or approved by all
necessary Persons, as applicable, prior to April 1, 2003, (y) Holdco
will have outstanding no Indebtedness for borrowed money other than
Indebtedness for borrowed money under this Agreement and the other Loan
Documents, and up to $200,000,000 principal amount of Permitted High
Yield Securities which do not require the payment of interest,
principal or dividends in cash until at least 6 months following the
Final Maturity Date and (z)(i) such updated Projections shall not
materially adversely differ from the Projections dated August 1, 2002,
other than to reflect recent performance and (ii) there has not been
since the Second Amendment Date a material and adverse change in the
Borrower's consolidated results of operations) demonstrating the
Borrower's pro forma compliance with Sections 9.1(a), 9.2, 9.3(a) and
9.4(a) of the Credit Agreement (after giving effect to the expiration
of the Amendment Period) and ability to make all payments of interest
and principal when due with respect to the Loans through the Final
Maturity Date (which Projections may show the final maturity of the
Loans being repaid with the proceeds of new borrowings as long as the
projected Borrower Leverage Ratio at the Final Maturity Date is no
greater than 1.00 to 1.00)."
"'Amendment Period' shall mean the period from and including
the Second Amendment Date through and including the earlier of (a)
September 30, 2003 and (b) the effective date of any Acceptable
Restructuring Plan."
"'Broadcast Business' shall mean the ownership, leasing and
services components of the Borrower's and the Designated Subsidiaries'
broadcast tower business conducted by the Persons listed on Schedule 1
attached hereto."
"'BTS Transaction Vehicle Subsidiary' shall mean any direct or
indirect Subsidiary of the Borrower formed in connection with the
transfer of any Cingular Transaction Assets to any Cingular Purchaser
pursuant to the BTS Termination Agreement, which Subsidiary is formed
immediately prior to such transfer and which holds no property or
assets other than the Cingular Transaction Assets subject to such
transfer. For purposes of this Agreement and the other Loan Documents,
a `BTS Transaction Vehicle Subsidiary' shall not constitute a
Restricted Subsidiary, a Foreign Subsidiary, a Canadian Subsidiary, a
Designated Subsidiary or an Unrestricted Subsidiary of the Borrower."
"'Chapter 11 Case' shall mean the first case, if any,
voluntarily commenced, or converted to a voluntary case, by Holdco
under Chapter 11 of the Bankruptcy Code during the Amendment Period."
"'Chapter 11 Funding Amount' shall mean the result of (a)
$25,000,000, minus (b) the aggregate amount of distributions made by
the Borrower to Holdco pursuant to Section 8.7(c) hereof."
"'Cingular' shall mean Cingular Wireless LLC, a Delaware
limited liability company."
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"'Cingular Purchase Agreement' shall mean that certain
SpectraSite Newco Purchase Agreement dated as of May 15, 2002, among
Cingular, Holdco, STI, the Borrower and STI Sub."
"'Cingular Purchasers' shall mean, collectively, Cingular, SBC
Wireless and their respective designees, successors and assigns."
"'Cingular Transaction' shall mean, collectively, (a) the
transfer by STI to Cingular or its designee of all of STI's interest in
the Cingular Transaction Assets transferred pursuant to the Cingular
Purchase Agreement by transferring such interests to STI Sub and then
by transferring all of the membership interests in STI Sub to Cingular
or its designee, and (b) the agreement by SBC Wireless to reduce STI's
future sublease commitment to SBC Wireless and SBC Tower Holdings
pursuant to the SBC Agreement to Sublease by 187 Towers, in each case
pursuant to the terms and conditions of the Cingular Transaction
Documents."
"'Cingular Transaction Assets' shall mean, collectively, all
right, title and interest of Holdco, the Borrower, STI or any other
Restricted Subsidiary in the Released Sites, and certain Assets related
to the Released Sites, to be disposed of, and directly or indirectly
transferred to the Cingular Purchasers, pursuant to the terms and
conditions of the Cingular Transaction Documents, all of such Released
Sites and Assets being specifically identified on Schedule 2 attached
hereto."
"'Cingular Transaction Documents' shall mean, collectively,
the Cingular Purchase Agreement, the SBC/Cingular Amendment and all
other documents and agreements executed in connection therewith."
"'Concourse Disposition' shall mean the disposition by the
Borrower of its Equity Interests in Concourse Communications and the
repayment of the loans made by the Borrower to Concourse Communications
pursuant to the terms and conditions of the Concourse Disposition
Documents."
"'Concourse Disposition Documents' shall mean, collectively,
(a) a Debt Repayment and Redemption Agreement among Concourse
Communications, the Borrower, NTA and certain other Persons named
therein and (b) an Assignment and Assumption Agreement among the
Borrower, as assignor, Concourse Holding Co., LLC, as assignee, and
Concourse Communications, as borrower, in each case in substantially
the form of the drafts of such documents provided to the Collateral
Agent prior to the Second Amendment Date."
"'Court' shall mean the United States Bankruptcy Court or
District Court having jurisdiction over the Chapter 11 Case, if any."
"'Debt Per Tower Ratio' shall mean, on any calculation date,
the ratio of (a) Borrower Debt, to (b) the aggregate number of Towers
(other than Towers comprising the roof-top and in-building operations
of the Borrower and the Designated Subsidiaries) owned or leased by the
Borrower and the Designated Subsidiaries as of such date."
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"'Dollar Equivalent Amount' shall mean, with respect to (a)
any amount of any currency other than Dollars on any date, the
equivalent amount in Dollars of such amount of currency as determined
by the Administrative Agent in accordance with Section 2.3(g) hereof
using the spot exchange rate of such currency into Dollars determined
as of 11:00 a.m. (New York time) on the applicable calculation date,
and (b) any amount in Dollars, such amount."
"'Judgment Currency' shall have the meaning set forth in
Section 2.11(d) hereof."
"'Network Services Business' shall mean the fabrication,
erection, line and antenna installation, and other related components
of the network broadcast services business of the Borrower and its
Subsidiaries conducted by the Persons listed on Schedule 3 attached
hereto."
"'Permitted Network Services Investments' shall mean
Investments in any Subsidiaries comprising a portion of the Network
Services Business made during the period from the Second Amendment Date
through March 31, 2003, in an aggregate amount not to exceed the lesser
of (a) the sum of (i) with respect to Investments made during the
period from the Second Amendment Date through December 31, 2002, for
the purpose of funding the ongoing losses, Capital Expenditures,
working capital and general corporate needs of the Network Services
Business, $25,000,000, plus (ii) to the extent that the Borrower shall
elect to shut-down, rather than dispose of, the Network Services
Business, with respect to Investments made during the period from the
Second Amendment Date through March 31, 2003, for the purpose of
funding expenses relating to such shut-down, $10,000,000, and (b)
$30,000,000."
"'Reaffirmation and Consent Agreement' shall mean that certain
Reaffirmation and Consent Agreement dated as of August 14, 2002, in
form and substance reasonably satisfactory to the Collateral Agent,
pursuant to which the Subsidiary Guarantors shall consent to the Second
Amendment to Amended and Restated Credit Agreement and reaffirm their
respective guaranties and pledges of security set forth in the Loan
Documents."
"'Released Sites' shall mean, collectively, the now existing
or proposed Tower Sites or other locations identified on Schedule 2
hereto as `Released Sites.'"
"'SBC Build-to-Suit Termination Agreement' shall mean that
certain Termination and Amendment to Agreement to Build To Suit dated
as of May 15, 2002, among SBC Wireless (for itself and on behalf of the
"SBCW Parties" referred to therein), Holdco and the Borrower."
"'SBC/Cingular Amendment' shall mean that certain Letter
Agreement dated as of May 15, 2002, among Cingular, SBC Wireless, SBC
Tower Holdings, Holdco, STI and the Borrower."
"'Second Amendment Date' shall mean the Effective Date of the
Second Amendment to this Agreement."
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"'STI Sub' shall mean CA/NV Tower Holdings, LLC, a Delaware
limited liability company."
(b) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definitions of "Adjustment
Date," "Broadcast Services Business" and "Permitted Mexican Investments" in
their entirety.
(c) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by adding the following proviso at the end of the
definition of "Borrower Interest Expense":
"; provided, however, that solely for purposes of determining the
Borrower's pro forma compliance with the Financial Covenants as
required by clauses (y) and (z) of Section 8.5(v) hereof, `Borrower
Interest Expense' shall be deemed to include an amount equal to the
amount of interest expense which would have accrued with respect to any
Borrower Debt incurred in connection with the applicable Acquisition or
Investment, or series of Acquisitions or Investments, as if such
Borrower Debt had been outstanding during the entire twelve (12) month
period ended on the date of calculation and at the rate of interest
applicable to Eurodollar Advances made under the Revolving Commitment
on the date of calculation."
(d) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "Borrower
Leverage Ratio" in its entirety and by substituting the following in lieu
thereof:
"'Borrower Leverage Ratio' shall mean, on any calculation
date, the ratio of (a) Borrower Debt, to (b) Annualized EBITDA."
(e) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by adding the following provisos at the end of the
definition of "Corporate Overhead":
"; provided, however, for purposes of determining Annualized EBITDA,
Annualized EBITDA (Tower Operations), EBITDA and EBITDA (Other
Operations), `Corporate Overhead' shall be, (i) for the period ended on
September 30, 2002, Corporate Overhead for the immediately preceding
fiscal quarter, times four (4), (ii) for the period ended on December
31, 2002, Corporate Overhead for the immediately preceding two (2)
fiscal quarter period, times two (2), and (iii) for the period ended on
March 31, 2002, Corporate Overhead for the immediately preceding three
(3) fiscal quarter period, times four-thirds (4/3); provided further,
however, that notwithstanding anything contained in this Agreement to
the contrary, with respect to any calculation date from and after the
Second Amendment Date, for purposes of determining EBITDA, `Corporate
Overhead' shall not include any Corporate Overhead attributable to the
Network Services Business."
(f) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "Designated
Subsidiaries" in its entirety and by substituting the following in lieu thereof:
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"'Designated Subsidiaries' shall mean, collectively, the
Restricted Subsidiaries and the Foreign Subsidiaries."
(g) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by inserting, immediately prior to the phrase
"'EBITDA' shall also include" in clause (I) of the first proviso in the
definition of "EBITDA," the phrase "or the Acquisition by the Borrower or any of
the Designated Subsidiaries of any Towers, Tower Sites or other communications
tower facilities, communications tower management businesses or related
contracts,".
(h) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the definition of "Holdco Pledge
Agreement" in its entirety and by substituting the following in lieu thereof:
"'Holdco Pledge Agreement' shall mean that certain Second
Amended and Restated Stock Pledge Agreement between Holdco and the
Collateral Agent, for the benefit of the Credit Parties, dated as of
August 14, 2002, in substantially the form of Exhibit D attached
hereto, pursuant to which Holdco has pledged to the Collateral Agent
all of the Equity Interests, whether now owned or hereafter acquired by
Holdco, in each of its domestic Subsidiaries and 66-2/3% of the Equity
Interests, whether now owned or hereafter acquired by Holdco, in each
of its Subsidiaries organized outside of the United States."
(i) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting clause (ii) (to, but not including, the
phrase "(in any event, a `Sales Transaction')" from the definition of "Net Cash
Proceeds" and by substituting the following in lieu thereof:
"(ii) any receipt from Holdco by the Borrower or any of the Designated
Subsidiaries of the proceeds from the issuance by Holdco or any of the
Designated Subsidiaries of any Equity Interests or other debt or equity
securities"
(j) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "NTA
Investment" in its entirety and by substituting the following in lieu thereof:
"'NTA Investment' shall mean (a) prior to the consummation of
the Concourse Disposition, the Investment by the Borrower in Concourse
Communications (including the staged purchase of the issued and
outstanding Equity Interests of, and the making of certain loans to,
Concourse Communications) pursuant to the NTA Investment Documents, in
an aggregate amount not to exceed $15,000,000, which shall be the
aggregate amount of the Borrower's Investment in Concourse
Communications as of the Second Amendment Date (provided that, in the
event that the Concourse Disposition shall not be consummated, the
foregoing basket shall be increased by the sum of (i) $10,000,000, plus
(ii) the amount of any New Affiliated Equity to the extent allocated
solely to this purpose), and (b) after consummation of the Concourse
Disposition, zero (0)."
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(k) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the parenthetical in the existing
definition of "Other Operations" and by substituting "(other than the Tower
Operations and the Network Services Business)" in lieu thereof.
(l) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the clause (b)(ii)(A)(II) ("(II) at a
coupon no greater than fifteen percent (15%)") from the definition of "Permitted
High-Yield Securities" and by substituting "(II) at a coupon greater than
fifteen percent (15%)" in lieu thereof.
(m) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "Revolving
Commitment" in its entirety and by substituting the following in lieu thereof:
"'Revolving Commitment' shall mean the several obligations of
certain of the Lenders to advance the sum of up to $300,000,000 to the
Borrower in accordance with their respective Revolving Commitment
Ratios, and as reduced from time to time, all pursuant to the terms
hereof."
(n) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting ", and evidenced by the Revolving
Notes" from the definition of "Revolving Loans."
(o) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "Revolving
Notes" and by substituting the following in lieu thereof:
"'Revolving Notes' shall mean those certain revolving
promissory notes issued by the Borrower to each of the Lenders issuing
a Revolving Commitment that requests a promissory note in accordance
with each such Lender's Revolving Commitment Ratio, each one
substantially in the form of Exhibit L attached hereto, and any
extensions, modifications, renewals or replacements of or amendments to
any of the foregoing."
(p) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by adding the phrase "the Reaffirmation and Consent
Agreement," immediately prior to the reference to "the Holdco Pledge Agreement,"
in the definition of "Security Documents".
(q) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "Subsidiary
Guarantors" in its entirety and by substituting the following in lieu thereof:
"'Subsidiary Guarantors' shall mean, collectively, each of the
Restricted Subsidiaries."
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(r) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by adding the following provisos at the end of the
definition of "Total Interest Expense":
"; provided, however, for purposes of determining the Total
Interest Coverage Ratio with respect to any calculation date during the
period from and including the Second Amendment Date, through and
including the date of the expiration of the Amendment Period, `Total
Interest Expense' shall be the sum of (i) Borrower Interest Expense
determined on an annualized basis by multiplying (A) the actual amount
of Borrower Interest Expense accrued (whether or not paid) during the
period from and including the Second Amendment Date through such
calculation date, times (B) a fraction the numerator of which is 365
and the denominator of which is the actual number of days elapsed
during such period, plus (ii) the product of (A) the amount of any
Restricted Payment to be made by the Borrower or any of the Designated
Subsidiaries for the purpose of making payments of interest or
dividends in respect of any issuance of the Holdco Notes or any other
Permitted High-Yield Securities on such calculation date, multiplied by
(B) two (2), plus (iii) the sum for all issuances of Holdco Notes
(other than any issuance subject to the foregoing clause (ii)), if any,
of the product determined with respect to each such issuance of (A) the
aggregate amount of all Restricted Payments made by the Borrower or any
of the Designated Subsidiaries to Holdco during the immediately
preceding six (6) month period (or, to the extent shorter, the period
from and including the Second Amendment Date through such calculation
date) for the purposes of making payments of interest or dividends in
respect of such issuance, multiplied by (B) two (2)."
(s) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "Tranche A
Commitment" in its entirety and by substituting the following in lieu thereof:
"'Tranche A Commitment' shall mean the several obligations of
certain of the Lenders to advance the sum of up to $335,000,000 to the
Borrower not later than the Second Amendment Date, in accordance with
their respective Tranche A Commitment Ratios, and as reduced from time
to time, all pursuant to the terms hereof."
(t) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting ", and evidenced by the Tranche A
Notes" from the definition of "Tranche A Loans."
(u) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "Tranche A
Notes" in its entirety and by substituting the following in lieu thereof:
"'Tranche A Notes' shall mean those certain term notes issued
by the Borrower to each of the Lenders issuing a Tranche A Commitment
that requests a promissory note in accordance with each such Lender's
Tranche A Commitment Ratio, each one substantially in the form of
Exhibit R attached hereto, and any extensions, modifications, renewals
or replacements of or amendments to any of the foregoing."
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(v) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting ", and evidenced by the Tranche B
Notes" from the definition of "Tranche B Loans."
(w) Article 1 of the Credit Agreement, Definitions, is hereby
further modified and amended by deleting the existing definition of "Tranche B
Notes" in its entirety and by substituting the following in lieu thereof:
"'Tranche B Notes' shall mean those certain term notes issued
by the Borrower to each of the Lenders issuing a Tranche B Commitment
that requests a promissory note in accordance with each such Lender's
Tranche B Commitment Ratio, each one substantially in the form of
Exhibit S attached hereto, and any extensions, modifications, renewals
or replacements of or amendments to any of the foregoing."
2. Amendments to Section 2.1.
(a) Section 2.1 of the Credit Agreement, The Loans, is hereby
modified and amended by deleting the reference to "One Billion Three Hundred
Million Dollars ($1,300,000,000)" from the introductory paragraph thereof and by
substituting "One Billion Eighty-Five Million Dollars ($1,085,000,000)" in lieu
thereof.
(b) Section 2.1(c) of the Credit Agreement, The Tranche A
Loans, is hereby modified and amended by deleting each reference to "the Tranche
A Commitment Termination Date" therein and by substituting "the Second Amendment
Date" in lieu thereof.
3. Amendment to Section 2.2. Section 2.2(f) of the Credit Agreement,
Automatic Payment, is hereby modified and amended by deleting the first sentence
thereof in its entirety and by substituting the following in lieu thereof:
"Unless payment is otherwise timely made by the Borrower, the becoming
due of any amount required to be paid under this Agreement or any of
the other Loan Documents as principal, accrued interest, fees or other
charges in respect of the Loans shall be deemed irrevocably to be a
Request for Advance on the due date of, and in an aggregate amount
required to pay, such principal, accrued interest, fees or other
charges, and the proceeds of an Advance under the Available Revolving
Commitment, made pursuant thereto may be disbursed by way of direct
payment of the relevant Obligation and shall bear interest initially as
a Base Rate Advance."
4. Amendments to Section 2.3.
(a) Section 2.3(a) of the Credit Agreement, On Base Rate
Advances, is hereby modified and amended by deleting the first sentence
therefrom and by substituting the following in lieu thereof:
"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 (i) prior to the effective date of an Acceptable Restructuring
Plan, monthly in arrears commencing on August 31,
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2002 and continuing thereafter on the last Business Day of each month,
and (ii) after the effective date of an Acceptable Restructuring Plan,
quarterly in arrears on the last Business Day of each calendar
quarter."
(b) Section 2.3(b) of the Credit Agreement, On Eurodollar
Advances, is hereby modified and amended by deleting the first sentence
therefrom and by substituting the following in lieu thereof:
"Interest on each Eurodollar Rate Advance shall be computed on the
basis of a 360-day year for the actual number of days elapsed and shall
be payable in arrears (i) on the applicable Payment Date for such
Advance, and (ii) (A) prior to the effective date of an Acceptable
Restructuring Plan, if the Eurodollar Advance Period for such
Eurodollar Advance exceeds one (1) month, on every one (1) month
anniversary of such Eurodollar Advance, and (B) after the effective
date of an Acceptable Restructuring Plan, if the Eurodollar Advance
Period for such Eurodollar Advance exceeds three (3) months, on every
three (3) month anniversary of such Eurodollar Advance."
(c) Section 2.3(f) of the Credit Agreement, Applicable Margins
for Base Rate Advances and Eurodollar Advances, is hereby modified and amended
by deleting the introductory paragraph in clause (i) in its entirety and
substituting the following in lieu thereof:
"Advances Under the Revolving Commitment or of the Tranche A
Loans. With respect to any Advance under the Revolving Commitment, or
any Advance of the Tranche A Loans, the Applicable Margin shall be, (A)
on and after the Second Amendment Date to and including the effective
date of an Acceptable Restructuring Plan, (x) 3.75% with respect to any
Eurodollar Advance and (y) 2.50% with respect to any Base Rate Advance,
and (B) after the effective date of an Acceptable Restructuring Plan,
the interest rate margin based upon the Borrower Leverage Ratio for the
most recent fiscal quarter end, effective as of the second (2nd)
Business Day after the financial statements referred to in Section 7.1
hereof are delivered by the Borrower to the Administrative Agent for
the fiscal quarter of the Borrower most recently ended, expressed as a
per annum rate of interest as follows:"
(d) Section 2.3(f) of the Credit Agreement, Applicable Margins
for Base Rate Advances and Eurodollar Advances, is hereby further modified and
amended by deleting clause (ii) in its entirety and substituting the following
in lieu thereof:
"(ii) Advances of the Tranche B Loans. With respect to any
Advance of the Tranche B Loans, the Applicable Margin shall be, (A) on
and after the Second Amendment Date to and including the effective date
of an Acceptable Restructuring Plan, (x) 4.50% with respect to any
Eurodollar Advance and (y) 3.25% with respect to any Base Rate Advance,
and (B) after the effective date of an Acceptable Restructuring Plan,
(x) 4.00% per annum with respect to any Eurodollar Advance and (y)
2.75% per annum with respect to any Base Rate Advance."
(e) Section 2.3 of the Credit Agreement, Interest, is hereby
amended by adding the following new subsection (g) at the end thereof:
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"(g) Determination of Dollar Equivalent Amount. The
Administrative Agent will determine the Dollar Equivalent Amount with
respect to (i) any issuance of, or any amendment to, a Letter of Credit
denominated in a currency other than Dollars, as of the requested
issuance date of such Letter of Credit, (ii) any drawing under a Letter
of Credit denominated in a currency other than Dollars as of the date
the Borrower is required pursuant to Section 2.14 to reimburse the
Issuing Bank, (iii) all outstanding L/C Obligations in respect of
Letters of Credit denominated in a currency other than Dollars, on any
date on which the Revolving Commitment is reduced pursuant to Section
2.5, 2.6 or 2.7 hereof, (iv) all outstanding L/C Obligations in respect
of Letters of Credit denominated in a currency other than Dollars for
purposes of calculating compliance with the Financial Covenants as of
the last Business Day of the fiscal quarter for which computation
thereof is made, and (v) all outstanding L/C Obligations in respect of
Letters of Credit denominated in a currency other than Dollars for
purposes of calculating the fees set forth in Section 2.4 hereof as of
the last Business Day of the fiscal quarter for which computation
thereof is made. The Administrative Agent shall provide notice of any
determination of the Dollar Equivalent Amount to each of the Lenders
that have issued a Revolving Loan Commitment. Each determination of a
Dollar Equivalent Amount by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the
Borrower and the Lenders in the absence of manifest error. In the event
that any determination of a Dollar Equivalent Amount under this Section
2.3(g) shall cause the Dollar Equivalent Amount of the aggregate amount
of the L/C Obligations then outstanding to exceed the Letter of Credit
Committed Amount (or the sub-limit of the Letter of Credit Committed
Amount available for Letters of Credit issued in foreign currencies),
the Borrower shall, promptly upon demand by the Administrative Agent,
pay to the Administrative Agent, for the benefit of the Issuing Banks,
an amount in Dollars equal to such excess, which cash will be held as
cash collateral by the Administrative Agent for the L/C Obligations and
applied to the payment of drafts drawn under the Letters of Credit to
which such excess is applicable and the unused portion thereof, if any,
after such Letters of Credit shall have expired or been fully drawn
upon or after a subsequent determination of the Dollar Equivalent
Amount shall cause the aggregate amount of L/C Obligations to no longer
exceed the Letter of Credit Committed Amount, shall be returned to the
Borrower."
5. Amendments to Section 2.4.
(a) Section 2.4(a) of the Credit Agreement, Commitment Fees,
is hereby modified and amended by deleting the second sentence therefrom
(beginning with "Such commitment fees...") and substituting the following in
lieu thereof:
"Such commitment fees shall be computed on the basis of a year of
365/366 days for the actual number of days elapsed, shall be payable
(x) prior to the effective date of an Acceptable Restructuring Plan,
monthly in arrears on the last Business Day of each calendar month, and
(y) after the effective date of an Acceptable Restructuring Plan,
quarterly in arrears on the last Business Day of each calendar quarter,
shall be fully earned when due, and shall be non-refundable when paid."
11
(b) Section 2.4(b) of the Credit Agreement, Letter of Credit
Fee, is hereby modified and amended by deleting the first two sentences
therefrom in their entirety and by substituting the following in lieu thereof:
"The Borrower agrees to pay to the Administrative Agent, for the
benefit of the Lenders, in accordance with their respective Revolving
Commitment Ratios, a letter of credit fee payable in Dollars calculated
on the Dollar Equivalent Amount of the currency in which such Letter of
Credit is denominated at a rate per annum equal to the Applicable
Margin for Eurodollar Advances under the Revolving Commitment (computed
on the basis of a 360 day year for the actual number of days elapsed)
on the stated amount of each Letter of Credit issued by the Issuing
Bank hereunder for each day such Letter of Credit is outstanding. Such
letter of credit fee shall be due and payable (x) prior to the
effective date of an Acceptable Restructuring Plan, monthly in arrears
on the last Business Day of each calendar month during which such
Letter of Credit is outstanding, and (y) after the effective date of an
Acceptable Restructuring Plan, quarterly in arrears on the last
Business Day of each calendar quarter during which such Letter of
Credit is outstanding, and any accrued and unpaid letter of credit fees
shall also be due and payable on the Initial Maturity Date"
(c) Section 2.4(c) of the Credit Agreement, Issuing Bank Fee,
is hereby modified and amended by deleting the first sentence therefrom in its
entirety and by substituting the following in lieu thereof:
"The Borrower agrees to pay to the Issuing Bank, for its own account,
an issuing bank fee in Dollars in the amount of such Issuing Bank's
customary fee with respect to the issuance of a Letter of Credit
calculated on the Dollar Equivalent Amount of the currency in which
such Letter of Credit is denominated on the stated amount of each
Letter of Credit issued by such Issuing Bank hereunder, which fee shall
be due and payable (x) prior to the effective date of an Acceptable
Restructuring Plan, monthly in arrears on the last Business Day of each
calendar month during which such Letter of Credit is outstanding and
(y) after the effective date of an Acceptable Restructuring Plan,
quarterly in arrears on the last Business Day of each calendar quarter
in which such Letter of Credit is outstanding."
6. Amendments to Section 2.5.
(a) Section 2.5(b)(i) of the Credit Agreement, Terms of
Prepayments or Reductions, is hereby deleted in its entirety and the following
substituted in lieu thereof:
"(i) Terms of Prepayments or Reductions. Optional permanent
prepayments of principal of the Term Loans, and permanent reductions of
the Revolving Commitment hereunder, and on or before the Second
Amendment Date, permanent reductions of the Tranche A Commitment, may
be made at any time upon three (3) Business Days' prior irrevocable
written notice to the Administrative Agent, without penalty or premium,
provided that such prepayments or reductions shall be in minimum
amounts of $5,000,000 and integral multiples of $1,000,000."
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(b) Section 2.5(b)(ii) of the Credit Agreement, Application of
Payments or Reductions, is hereby modified and amended by deleting clause (A) in
its entirety and substituting the following in lieu thereof:
"(A) In the event that the Borrower shall make a prepayment of
the Term Loans, such prepayment shall permanently reduce, on a pro rata
basis, the Tranche A Loans, the Tranche B Loans and, to the extent then
outstanding, any Incremental Facility Loans which are term loans. Each
such reduction allocated to the Tranche A Loans shall reduce, on a pro
rata basis, the remaining scheduled installments of principal due under
the Tranche A Loans as set forth in Section 2.6(b)(ii) hereof. Each
such reduction allocated to the Tranche B Loans shall reduce, on a pro
rata basis, the remaining scheduled installments of principal due under
the Tranche B Loans as set forth in Section 2.6(c) hereof. Each such
reduction of the Incremental Facility Loans which are term loans shall
be allocated to such Incremental Facility Loans, on a pro rata basis,
to the remaining scheduled installments of principal due in respect of
such Incremental Facility Loans. Each prepayment hereunder of any
Eurodollar Advances shall also be made together with accrued interest
on the amount so prepaid."
(c) Section 2.5(b)(ii) of the Credit Agreement, Application of
Payments or Reductions, is hereby further modified and amended by adding the
following at the end of clause (B) thereof:
"The permanent reduction of the Revolving Commitment made on the Second
Amendment Date shall be applied to reduce the remaining scheduled
reductions of the Revolving Commitment as set forth in Section 2.6(a)
hereof in the direct order of maturity, and the permanent reduction of
the Tranche A Commitment made on the Second Amendment Date shall be
applied to reduce the remaining scheduled installments of principal due
under the Tranche A Loans as set forth in Section 2.6(b)(ii) hereof in
the direct order of maturity."
7. Amendments to Section 2.6.
(a) Section 2.6(a) of the Credit Agreement, Revolving
Commitment, is hereby modified and amended by (i) deleting the heading of the
second column in the table set forth therein and by substituting "Percentage of
Revolving Commitment Outstanding Immediately Prior to the Second Amendment Date
to be Reduced Each Quarter" in lieu thereof and (ii) deleting the heading of the
third column in the table set forth therein and by substituting "Annual
Percentage of Revolving Commitment Outstanding Immediately Prior to the Second
Amendment Date to be Reduced" in lieu thereof.
(b) Section 2.6(b)(ii) of the Credit Agreement, Amortization
of Tranche A Loans, is hereby modified and amended by (i) deleting the heading
of the second column in the table set forth therein and by substituting
"Percentage of Tranche A Commitment Outstanding Immediately Prior to the Second
Amendment Date to be Applied to Reduce the Tranche A Loans Outstanding Each
Quarter" in lieu thereof and (ii) deleting the heading of the third column in
the table set forth therein and by substituting "Annual Percentage of Tranche A
Commitment
13
Outstanding Immediately Prior to the Second Amendment Date to be Applied to
Reduce the Tranche A Loans" in lieu thereof.
(c) Section 2.6(c) of the Credit Agreement, Tranche B Loans,
is hereby modified and amended by (i) deleting the heading of the second column
in the table set forth therein and by substituting "Percentage of Tranche B
Loans Outstanding Immediately Prior to the Second Amendment Date to be Applied
to Reduce the Tranche B Loans Outstanding Each Quarter" in lieu thereof and (ii)
deleting the heading of the third column in the table set forth therein and by
substituting "Annual Percentage of Tranche B Loans Outstanding Immediately Prior
to the Second Amendment Date to be Applied to Reduce the Tranche B Loans" in
lieu thereof.
8. Amendments to Section 2.7.
(a) Section 2.7(b) of the Credit Agreement, Disposition of
Assets, is hereby modified and amended by deleting subsection (i) in its
entirety and by substituting the following in lieu thereof:
"(i) If, after the Agreement Date, the Borrower or any of the
Designated Subsidiaries shall sell, transfer or otherwise dispose of
(including, without limitation, by way of condemnation or casualty) (I)
any Cingular Transaction Assets in connection with the Cingular
Transaction, (II) all or any portion of the Network Services Business,
or (III) any other Assets, or any of the Designated Subsidiaries shall
issue minority Equity Interests therein, with Net Cash Proceeds in
excess of $10,000,000 in the aggregate during the term of this
Agreement (other than (A) the sale of obsolete equipment (other than
Towers), (B) the sale of inventory in the ordinary course of business,
(C) the sale, transfer or other disposition of Assets that are replaced
by property of substantially equivalent value in the ordinary course of
business, (D) the sale, transfer or other disposition of any Equity
Interests in any Unrestricted Subsidiary or Unrestricted Investment,
and (E) the lease of space on Towers in the ordinary course of
business), one hundred percent (100%) of the Net Cash Proceeds (in the
case of each of clauses (I), (II) and (III)) received by the Borrower
or such Designated Subsidiary from such Sales Transaction shall be
applied, on the date of receipt thereof by the Borrower or such
Designated Subsidiary, to prepay the Loans as set forth in Section
2.7(e) below; provided, however, that, at the Borrower's election, so
long as no Default or Event of Default then exists or would be caused
thereby, up to $20,000,000 of such Net Cash Proceeds received by the
Borrower or any Designated Subsidiary (other than any Net Cash Proceeds
received in connection with the Cingular Transaction or the disposition
of all or any portion of the Network Services Business) in the
aggregate during any year may be used by the Borrower or such
Restricted Subsidiary to purchase or construct one or more Towers or
otherwise to invest in capital assets, the aggregate Purchase Price of
which does not exceed such Net Cash Proceeds (or the sum of such Net
Cash Proceeds plus amounts otherwise available for Permitted
Acquisitions), so long as the Borrower or such Designated Subsidiary
shall have (A) entered into a definitive contract for purchase or
construction no later than six (6) months from the date of such sale or
other disposition, and (B) concluded such purchase or construction
within twelve (12) months from the date of such sale or other
disposition."
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(b) Section 2.7(b) of the Credit Agreement, Disposition of
Assets, is hereby further modified and amended by deleting subsection (iii) in
its entirety.
(c) Section 2.7(e) of the Credit Agreement, Application of
Payments, is hereby modified and amended by deleting the first two sentences
therefrom in their entirety and by substituting the following in lieu thereof:
"Except as otherwise permitted in Section 2.7(b) hereof, or as
otherwise required under this Section 2.7(e) or in Section 2.7(f)
hereof, the amount of any prepayment required to be made pursuant to
this Section 2.7 shall be applied as follows: (i) first, to permanently
reduce, on a pro rata basis, the outstanding principal amount of the
Tranche A Loans, the Tranche B Loans and, to the extent then
outstanding, any Incremental Facility Loans which are term loans, in
each case with the amount allocated to the Tranche A Loans being
applied to reduce, on a pro rata basis, the remaining scheduled
installments of principal due under the Tranche A Loans as set forth in
Section 2.6(b)(ii) hereof, and the amount allocated to the Tranche B
Loans being applied to reduce, on a pro rata basis, the remaining
scheduled installments of principal due under the Tranche B Loans as
set forth in Section 2.6(c) hereof, and the amount allocated to the
Incremental Facility Loans being applied to reduce, on a pro rata
basis, the remaining scheduled installments of principal due
thereunder; and (ii) thereafter, to prepay, on a pro rata basis, the
outstanding principal amount of the Revolving Loans, with a
corresponding permanent reduction in the amount of the Revolving
Commitment and, to the extent that any Incremental Facility Loans which
are revolving loans are then outstanding, the outstanding principal
amount of such Incremental Facility Loans, with a corresponding
permanent reduction in the amount of the Incremental Facility
Commitment applicable thereto; provided however, that if an Event of
Default has occurred and is continuing at the time of any prepayment
required to be made pursuant to this Section 2.7, the amount of such
prepayment shall be applied to prepay, on a pro rata basis, the Term
Loans, the Revolving Loans and any Incremental Facility Loans."
(d) Section 2.7(e) of the Credit Agreement, Application of
Payments, is hereby further modified and amended by adding the following at the
end thereof:
"Notwithstanding the foregoing, in the case of the amount of any
prepayment required to be made pursuant to Section 2.7(b) hereof from
the Net Cash Proceeds received by the Borrower and its Designated
Subsidiaries in connection with the Cingular Transaction, the amount of
any such prepayment shall be applied to permanently reduce, on a pro
rata basis, the outstanding principal amount of the Tranche A Loans and
the Tranche B Loans, in each case with the amount allocated to the
Tranche A Loans being applied to reduce the remaining scheduled
installments of principal due under the Tranche A Loans as set forth in
Section 2.6(b)(ii) hereof in the direct order of maturity, and the
amount allocated to the Tranche B Loans being applied to reduce the
remaining scheduled installments of principal due under the Tranche B
Loans as set forth in Section 2.6(c) hereof in the direct order of
maturity."
(e) Section 2.7 of the Credit Agreement, Mandatory Repayments,
is hereby modified and amended by adding the following new clause (f) at the end
thereof:
15
"(f) Revolving Loans. In addition to the repayments provided
for in Section 2.6(a) hereof, if at any time the aggregate principal
amount of Revolving Loans then outstanding shall, for any reason,
exceed the result of (i) the Available Revolving Commitment, less (ii)
the aggregate Dollar Equivalent Amount of L/C Obligations then
outstanding, less (iii) the aggregate principal amount of Swing Loans
then outstanding, the Borrower shall immediately make a payment of the
Revolving Loans in the amount of such excess, together with accrued
interest on the amount so prepaid."
9. Amendment to Section 2.8. Section 2.8 of the Credit Agreement,
Notes; Loan Accounts, is hereby modified and amended by deleting clause (a)
therefrom in its entirety and by substituting the following in lieu thereof:
"(a) The Loans shall be repayable in accordance with the terms
and provisions set forth herein. Upon the request of any Lender, Notes
shall be issued by the Borrower to the order of such Lender in
accordance with its Commitment Ratios with respect to the Loans. The
Swing Loans shall be evidenced by the Swing Loan Note, which Swing Loan
Note shall be payable to the order of the Swing Loan Lender in the
amount of the Swing Loan Committed Amount. If applicable, upon the
request of any Incremental Facility Lender, Incremental Facility Loan
Notes shall be issued by the Borrower to the order of such Incremental
Facility Lender in accordance with its pro rata share of the
Incremental Facility Commitments. Any Notes issued by the Borrower to
the order of any requesting Lender shall be duly executed and delivered
by one or more Authorized Signatories of the Borrower."
10. Amendment to Section 2.11. Section 2.11 of the Credit Agreement,
Pro Rata Treatment, is hereby modified and amended by adding the following new
clause (d) at the end thereof:
"(d) The Obligations shall, notwithstanding any judgment of
any court, arbitral tribunal or similar authority specifying judgment
in any currency other than Dollars (as so specified, the `Judgment
Currency'), be discharged only to the extent that, on the date when
received by the Administrative Agent or the Lenders or any of them, the
Dollar Equivalent Amount of the sum adjudged to be so due in the
Judgment Currency is equal to the amount of the Obligations then
outstanding. If the Dollar Equivalent Amount of the Judgment Currency
is less than the amount of the Obligations then outstanding, the
Borrower agrees to indemnify the Administrative Agent and the Lenders,
as the case may be, against such difference, and if the Dollar
Equivalent Amount of the Judgment Currency is greater than the amount
of the Obligations then outstanding, the Administrative Agent and the
Lenders, as the case may be, shall remit such excess to the Borrower,
but only to the extent that such excess amount has been actually
received from the Borrower. The calculations of the Administrative
Agent thereof shall be conclusive absent manifest error."
11. Amendments to Section 2.14.
16
(a) Section 2.14(a) of the Credit Agreement, Letter of Credit
Committed Amount, is hereby modified and amended by deleting subsection (i)
therefrom in its entirety and by substituting the following in lieu thereof:
"(i) Subject to the terms and conditions hereof, each Issuing
Bank, in reliance on the agreements of the L/C Participants set forth
in Section 2.14(d)(i) hereof, agrees to issue Letters of Credit
denominated in Dollars (or, if available to such Issuing Bank, in any
foreign currency) for the account of the Borrower prior to the Initial
Maturity Date, in such form as may be approved from time to time by
such Issuing Bank; provided that no Issuing Bank shall issue any Letter
of Credit if, after giving effect to such issuance, (A) the Dollar
Equivalent Amount of the aggregate amount of the L/C Obligations would
exceed the Letter of Credit Committed Amount, (B) the Dollar Equivalent
Amount of the aggregate amount of the L/C Obligations outstanding in
respect of Letters of Credit issued in foreign currencies would exceed
$20,000,000, or (C) the sum of (I) the aggregate principal amount of
Revolving Loans then outstanding, plus (II) the aggregate principal
amount of Swing Loans then outstanding, plus (III) the aggregate amount
of L/C Obligations then outstanding, would exceed the Available
Revolving Commitment. Schedule 2.14 lists all of the issued and
outstanding Letters of Credit as of the Agreement Date."
(b) Section 2.14(d)(i) of the Credit Agreement, L/C
Participations, is hereby modified and amended by adding the following sentence
at the end of such Section:
"Any such payment to be made by an L/C Participant to the
Issuing Bank with respect to Letters of Credit issued in foreign
currencies may be made in such foreign currency or in the Dollar
Equivalent Amount thereof as of the date on which such payment is to be
made."
(c) Section 2.14(e) of the Credit Agreement, Reimbursement
Obligations of the Borrower, is hereby modified and amended by deleting the last
sentence from subsection (i) and by substituting the following in lieu thereof:
"Each such payment shall be made to the applicable Issuing
Bank at its address for notices specified herein in Dollars (or, in the
case of Letters of Credit issued in foreign currencies, such foreign
currency or the Dollar Equivalent Amount thereof) in immediately
available funds."
(d) Section 2.14(e) of the Credit Agreement, Reimbursement
Obligations of the Borrower, is hereby further modified and amended by deleting
clause (iii) in its entirety and by substituting the following in lieu thereof:
"(iii) Each drawing under any Letter of Credit shall
constitute a request, with no further action required, by the Borrower
to the Administrative Agent for a borrowing pursuant to Section 2.2(b)
in the Dollar Equivalent Amount of such drawing. The funding date with
respect to such borrowing shall be the date of such drawing."
17
12. Amendment to Section 2.16. Section 2.16 of the Credit Agreement,
Incremental Facility Loans, is hereby modified and amended by adding the
following sentence at the end of subsection (a) thereof:
"Notwithstanding anything to the contrary contained in the
foregoing or otherwise contained in this Agreement, the Borrower may
not request an Incremental Facility Commitment or an Incremental
Facility Loan during the Amendment Period without the prior written
consent of the Majority Lenders."
13. Amendments to Article 3. Article 3 of the Credit Agreement,
Guarantee, is hereby modified and amended by deleting clause (ii) from the first
sentence of Section 3.1 and by substituting the following in lieu thereof:
"(ii) in case of any extension of time of payment or renewal of any of
the Loans, any Notes or any of such other Obligations, the same shall
be promptly paid in full when due in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise"
14. Amendment to Section 4.2. Section 4.2 of the Credit Agreement,
Conditions Precedent to Each Advance, is hereby modified and amended by adding
the following proviso at the end of clause (a) thereof:
"; provided, however, during the Amendment Period, any breach of the
representations and warranties set forth in Section 5.1(g) hereof
arising solely as a result of (x) the filing and existence of the
Chapter 11 Case, or (y) the failure by Holdco to make payments when due
with respect to the Holdco Notes during the Amendment Period to the
extent such payments shall have been due prior to or during the
continuation of the Chapter 11 Case, shall be an exception to the
foregoing."
15. Amendment to Section 4.3. Section 4.3 of the Credit Agreement,
Conditions Precedent to Issuance of Each Letter of Credit, is hereby modified
and amended by adding the following proviso at the end of clause (a) thereof:
"; provided, however, during the Amendment Period, any breach of the
representations and warranties set forth in Section 5.1(g) hereof
arising solely as a result of (x) the filing and existence of the
Chapter 11 Case, or (y) the failure by Holdco to make payments when due
with respect to the Holdco Notes during the Amendment Period to the
extent such payments shall have been due prior to or during the
continuation of the Chapter 11 Case, shall be an exception to the
foregoing."
16. Amendments to Section 5.1.
(a) Section 5.1(i) of the Credit Agreement, Litigation, is
hereby modified and amended by deleting the phrase "As of the Agreement Date"
from the first sentence thereof and by substituting "As of the Second Amendment
Date" in lieu thereof.
18
(b) Section 5.1(o) of the Credit Agreement, Investment Company
Act; Public Utility Holding Company Act, is hereby modified and amended by
deleting the phrase "the issuance of the Notes" therefrom and by substituting ",
the making of the Loans or the issuance of any Notes" in lieu thereof.
(c) Section 5.1(s) of the Credit Agreement, Agreements with
Affiliates and Management Agreements, is hereby modified and amended by deleting
the phrase "As of the Agreement Date" therefrom and by substituting "As of the
Second Amendment Date" in lieu thereof.
(d) Section 5.1(w) of the Credit Agreement, Indebtedness, is
hereby modified and amended by deleting the phrase "as of the Agreement Date"
therefrom and by substituting "as of the Second Amendment Date" in lieu thereof.
(e) Section 5.1(aa) of the Credit Agreement, SBC Lease
Documents; Holdco Notes Indentures, is hereby deleted in its entirety and the
following substituted in lieu thereof:
"(aa) SBC Lease Documents; Holdco Notes Indentures; Cingular
Transaction Documents. The Borrower has provided to the Arrangers (i)
correct and complete copies of the SBC Lease Documents and the Cingular
Transaction Documents as such documents are in effect on the Second
Amendment Date, and (ii) a correct and complete copy of each of the
Holdco Notes Indentures and the notes and other agreements and
documents executed and delivered pursuant thereto. To the best of the
Borrower's knowledge, none of the representations and warranties made
by or with respect to any of Holdco, the Borrower and the Borrower's
Subsidiaries as set forth in any of the SBC Lease Documents or the
Cingular Transaction Documents were incorrect in any material respect
when made or deemed made."
17. Amendments to Section 6.17.
(a) Section 6.17 of the Credit Agreement, Covenants Regarding
the Designation of Subsidiaries and Investments, is hereby modified and amended
by adding the following sentence at the end of subsection (a) thereof, Procedure
for Designation:
"Notwithstanding anything to the contrary contained in this Section
6.17(a), the Subsidiaries of the Borrower comprising the Network
Services Business shall be re-designated, effective as of the Second
Amendment Date, as Unrestricted Subsidiaries under this Agreement and
the other Loan Documents; provided, however, that all Collateral
relating to the Network Services Business shall remain pledged in favor
of the Collateral Agent, for the benefit of the Credit Parties,
pursuant to the Loan Documents and shall continue to secure the
Obligations without impairment or interruption."
(b) Section 6.17 of the Credit Agreement, Covenants Regarding
the Designation of Subsidiaries and Investments, is hereby further modified and
amended by deleting subsection (c) thereof, Release of Collateral Relating to
SpectraSite Mexico, in its entirety.
19
18. Amendments to Article 7.
(a) Section 7.1 of the Credit Agreement, Quarterly Financial
Statements and Information, is hereby modified and amended by deleting the
phrase "shall set forth in comparative form such figures as at the end of and
for such quarter and the corresponding quarter during the preceding fiscal
year," therefrom and by substituting the following in lieu thereof:
"shall set forth in comparative form such figures as at the end of,
with respect to the balance sheets and statements of cash flows, the
preceding fiscal year end and, with respect to the statements of
operations, as at the end of and for such quarter and the corresponding
quarter during the preceding fiscal year,"
(b) Section 7.1 of the Credit Agreement, Quarterly Financial
Statements and Information, is hereby further modified and amended by adding the
following proviso immediately before the period at the end thereof:
"; provided, however, notwithstanding anything to the contrary
contained in the foregoing, the Borrower will furnish drafts of the
quarterly financial statements required to be delivered pursuant to
this Section 7.1 with respect to the quarter ending December 31, 2002,
within forty-five (45) days after the last day of such fiscal quarter,
which drafts may be supplemented upon delivery of final unaudited
financial statements with respect to such fiscal quarter as otherwise
required pursuant to this Section 7.1"
(c) Section 7.2 of the Credit Agreement, Annual Financial
Statements and Information, is hereby modified and amended by adding the
following proviso at the end of the first sentence thereof:
"; provided, however, that notwithstanding anything to the contrary
contained in the foregoing, in the event that an Acceptable
Restructuring Plan shall not have been effected on or before December
31, 2002, the delivery of any opinion by Holdco's certified public
accountants in connection with their audit of the financial statements
and position of Holdco and its Subsidiaries for the annual period
ending December 31, 2002, containing a "going concern qualification"
shall not be deemed to be a violation of the foregoing requirement that
audit certifications be delivered without any qualifications or
explanatory paragraphs"
(d) Section 7.3 of the Credit Agreement, Performance
Certificates, is hereby modified and amended by (i) inserting the parenthetical
"(including, without limitation, any draft financial statements delivered with
respect to the fiscal quarter ending December 31, 2002)" immediately after the
phrase "pursuant to Section 7.1 hereof" in the introductory paragraph, and (ii)
adding the following new sentence at the end thereof.
"With respect to the Performance Certificate required to be furnished
in connection with the draft financial statements required to be
delivered with respect to the fiscal quarter ending December 31, 2002,
the Performance Certificate furnished in connection with the final
unaudited financial statements delivered with respect to such fiscal
quarter shall
20
supplement and replace the Performance Certificate delivered with the
draft financial statements; provided, however, that the Borrower
acknowledges and agrees that, with respect to any Advance made during
the period from the delivery of the draft financial statements until
delivery of the final financial statements, the Applicable Margin, the
Borrower Leverage Ratio and the Total Interest Coverage Ratio shall
each be determined on the basis of the financial information provided
in the draft financial statements and related Performance Certificate."
(e) Section 7.4 of the Credit Agreement, Copies of Other
Reports, is hereby modified and amended by adding the following new subsection
(g) immediately after subsection (f) thereof:
"(g) During the Amendment Period, in addition to the
Performance Certificate delivered at the end of each fiscal quarter,
upon the reasonable request of the Administrative Agent, the
arithmetical calculations required to establish whether the Borrower is
or shall be in compliance with the Total Interest Coverage Ratio as of
any particular date."
(f) Section 7.5 of the Credit Agreement, Notice of Litigation
and Other Matters, is hereby modified and amended by (i) deleting the word "and"
at the end of subsection (f), (ii) replacing the period at the end of subsection
(g) with a semicolon, and (iii) inserting the following new subsection (h)
following subsection (g):
"(h) upon incurring or otherwise obtaining a commercial tort
claim, as that term is defined in the Uniform Commercial Code of the
State of New York, after the date hereof against any third party and,
upon request of the Collateral Agent promptly amend the Security
Agreement or Subsidiary Security Agreement, as applicable, authorize
the filing of additional or amendments to existing financing statements
and do such other acts or things deemed necessary or desirable by the
Collateral Agent to give the Collateral Agent a first priority,
perfected security interest in any such commercial tort claim."
(g) Article 7 of the Credit Agreement, Information Covenants,
is hereby further modified and amended by adding the following new Section 7.6
at the end thereof:
"Section 7.6 Monthly Financial Statements and Information.
Within forty (40) days after the last day of each calendar month (other
than March, June, September or December), unaudited balance sheets of
Holdco, on a consolidated basis with its Subsidiaries, as at the end of
such month, and the related statements of cash flows and the related
statements of operations of Holdco, on a consolidated basis with its
Subsidiaries, in each case for such month and for the elapsed portion
of the year ended with the last day of such month, which shall set
forth in comparative form such figures as at the end of, with respect
to the balance sheets and statements of cash flows, the preceding
fiscal year and, with respect to the statements of operations, as at
the end of and for such month and the corresponding month during the
preceding fiscal year, and shall be certified by a Financial Officer of
the Borrower, to be, in his or her opinion, complete and correct in all
material respects and to present fairly in all material respects, in
accordance with GAAP (subject only to normal year-end adjustments and
the absence of footnotes), the financial
21
position of Holdco, on a consolidated basis with its 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."
19. Amendments to Section 8.1.
(a) Section 8.1 of the Credit Agreement, Indebtedness, is
hereby modified and amended by deleting subsection (b) in its entirety and by
substituting the following in lieu thereof:
"(b) Capitalized Lease Obligations of the Borrower and the
Designated Subsidiaries (other than any of the Tower Subsidiaries) not
to exceed the sum of (i) an aggregate principal amount of $15,000,000
at any one time outstanding over the remainder of the term of such
obligations, less the amount of any Indebtedness under Section 8.1(i)
below, plus (ii) an aggregate amount of $12,000,000 at any one time
outstanding over the remainder of the term of such obligation in
respect of a Capitalized Lease Obligation of the Borrower financing a
second headquarters building to be located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇;"
(b) Section 8.1 of the Credit Agreement, Indebtedness, is
hereby further modified and amended by deleting subsection (i) therefrom in its
entirety and by substituting the following in lieu thereof:
"(i) Indebtedness of the Borrower and the Designated
Subsidiaries (other than any of the Tower Subsidiaries) in respect of
conditional sale, rental or purchase money obligations, together with
any Capitalized Lease Obligations incurred pursuant to Section
8.1(b)(i), in an aggregate amount not to exceed $15,000,000 at any one
time outstanding;"
(c) Section 8.1 of the Credit Agreement, Indebtedness, is
hereby further modified and amended by deleting the reference to "Foreign
SpectraSite Subsidiary" from subsection (k) in its entirety and by substituting
"Foreign SpectraSite Mexico Subsidiary" in lieu thereof.
20. Amendment to Section 8.2. Section 8.2 of the Credit Agreement,
Investments, is hereby modified and amended by adding a new item (k) to part (x)
as follows:
"(k) Make Restricted Payments or loans to Holdco in the form
of loans to the extent permitted under Section 8.7(b) or
8.7(c)."
21. Amendment to Section 8.4. Section 8.4 of the Credit Agreement,
Amendment and Waiver, is hereby deleted in its entirety and the following
substituted in lieu thereof:
"Section 8.4 Amendment and Waiver. The Borrower shall not, and
shall cause each of the Designated Subsidiaries not to, without the
prior written consent of the Arrangers, enter into any amendment of, or
agree to or accept any waiver of, (i) which would materially adversely
affect the rights of the Borrower and the Credit Parties, or any
22
of them, of any of the provisions (including, without limitation, with
respect to any of the Nextel Acquisition Documents or the SBC Lease
Documents, any of the closing conditions set forth therein) of, (a) its
organizational documents, including, without limitation, its
certificate or articles of incorporation (other than any increase in
the number of authorized shares) and by-laws, (b) the Nextel
Acquisition Documents, (c) the Holdco Notes Indentures, (d) the SBC
Lease Documents, (e) the Cingular Transaction Documents, (f) the SBC
Build-to-Suit Termination Agreement, or (g) the Concourse Disposition
Documents, or (ii) which would reasonably be expected to have,
individually or in the aggregate, a Materially Adverse Effect, of any
of the provisions (including, without limitation, with respect to any
Permitted Acquisition Documents, any of the closing conditions set
forth therein) of, (a) the NTA Investment Documents, (b) the AirTouch
Acquisition Documents, (c) the Lodestar Acquisition Documents or (d)
any Permitted Acquisition Documents."
22. Amendments to Section 8.5.
(a) Section 8.5 of the Credit Agreement, Liquidation; Merger;
Acquisition or Disposition of Assets, is hereby modified and amended by deleting
clause (d) from the introductory paragraph in its entirety and by substituting
the following in lieu thereof:
"(d) sell, abandon, transfer, trade or otherwise dispose of, in a
single transaction or in a series of related transactions, (x) any
Equity Interests of a Designated Subsidiary, (y) all or substantially
all of the Assets of any division or line of business of the Borrower
or any of the Designated Subsidiaries or (z) any other Assets outside
of the ordinary course of business;"
(b) Section 8.5 of the Credit Agreement, Liquidation; Merger;
Acquisition or Disposition of Assets, is hereby modified and amended by deleting
the introductory paragraph of subsection (ii) in its entirety and by
substituting the following in lieu thereof:
"(ii) subject to compliance with the mandatory prepayment
provision of Section 2.7(b), (v) the Borrower and the Designated
Subsidiaries may consummate the Cingular Transaction and the Concourse
Disposition; (w) the Borrower and the Designated Subsidiaries may sell,
transfer or dispose of, in a single transaction or a series of related
transactions, the Network Services Business; (x) the Borrower and the
Designated Subsidiaries may sell, transfer or dispose of, in a single
transaction or a series of related transactions which are consummated
on or before the date which is two (2) years after the Second Amendment
Date, the Broadcast Business, so long as the Borrower shall provide to
the Arrangers and the Lenders calculations demonstrating, on a pro
forma basis, that (A) the Borrower Leverage Ratio and (B) the Debt Per
Tower Ratio shall be reduced after giving effect to such disposition
and the mandatory permanent prepayment of the Loans, if any, associated
therewith; (y) the Borrower and the Designated Subsidiaries may sell,
lease, abandon, transfer, trade or otherwise dispose of, in a single
transaction or in a series of related transactions, Assets, at the fair
market value thereof and, with respect to any disposition in which the
Purchase Price is equal to or greater than $10,000,000 (other than an
exchange or swap of Assets), at least seventy-five percent (75%) of the
Purchase Price shall be payable in cash; and (z) Designated
23
Subsidiaries may issue minority Equity Interests therein, and in
connection with any such disposition or issuance the Collateral Agent
shall, upon the request of the Borrower, release any Liens granted
pursuant to any of the Security Documents with respect to such Assets,
subject to the following conditions:"
(c) Section 8.5 of the Credit Agreement, Liquidation; Merger;
Acquisition or Disposition of Assets, is hereby further modified and amended by
inserting the phrase "with respect only to clauses (y) and (z) above of this
Section 8.5(ii)," at the beginning of clause (C) in subsection (ii) thereof.
(d) Section 8.5 of the Credit Agreement, Liquidation; Merger;
Acquisition or Disposition of Assets, is hereby further modified and amended by
deleting subsection (ii)(D) in its entirety and by substituting the following in
lieu thereof:
"(D) with respect only to clauses (y) and (z) above of this
Section 8.5(ii), each time that the Borrower and the Designated
Subsidiaries shall complete any single disposition or a series of
dispositions (whether related or unrelated) having an aggregate
Purchase Price with respect to all such dispositions of greater than or
equal to $50,000,000 (with the amount of this basket deemed used by the
Borrower and the Designated Subsidiaries being reset to zero (0)
following each delivery of Projections required hereunder), the
Borrower shall provide to the Arrangers and the Lenders revised
Projections assuming consummation of all dispositions included in such
set of dispositions and demonstrating on a pro forma basis, that (x)
the Borrower Leverage Ratio and (y) the Debt Per Tower Ratio shall be
reduced after giving effect to such disposition and the mandatory
permanent prepayment of the Loans, if any, associated therewith;"
(e) Section 8.5 of the Credit Agreement, Liquidation; Merger;
Acquisition or Disposition of Assets, is hereby further modified and amended by
deleting subsection (v) in its entirety and by substituting the following in
lieu thereof:
"(v) subject to compliance with Sections 6.9, 6.15 and 6.16
hereof, the Borrower and the Designated Subsidiaries may make the
following Acquisitions and Investments and form Subsidiaries with
respect thereto:
"(A) Acquisitions of (I) Tower Assets (other than Tower
management and rooftop businesses) located in the United States or (II)
Persons organized under the laws of the United States or any state
thereof or the District of Columbia that are engaged primarily in the
business of holding or leasing Tower Assets of such type which are
located in the United States, so long as the aggregate Purchase Price
for all such Acquisitions consummated during the period from and after
the Second Amendment Date through the Final Maturity Date shall not
exceed the sum of (I) $50,000,000, plus (II) the amount of any New
Affiliated Equity to the extent allocated solely to this purpose;
provided, however, that during the Amendment Period, any such
Acquisitions shall require the prior written consent of the Majority
Lenders;
24
"(B) Investments (whether structured as a single Investment or
a series of related Investments) by the Restricted Group in, and
Acquisitions not otherwise permitted under this Section 8.5(v) of, any
member of the Unrestricted Group, Restricted Investments and non-wholly
owned Restricted Subsidiaries in an amount not to exceed, in the
aggregate during the period from and after the Second Amendment Date
through the Final Maturity Date, the sum of (I) $15,000,000, plus (II)
the amount of any New Affiliated Equity to the extent allocated solely
to this purpose; provided, however, that the aggregate amount of any
such Investments made in members of the Unrestricted Group at any time
outstanding shall not exceed the sum of (x) $10,000,000, plus (y) the
amount of any New Affiliated Equity to the extent allocated solely to
this purpose;
"(C) Permitted Canadian Investments;
"(D) the NTA Investment;
"(E) Permitted Network Services Investments; and
"(F) Acquisitions with respect to which the portion of the
Purchase Price in excess of any monetary limitation set forth in this
Agreement is payable solely in Equity Interests issued by Holdco or the
proceeds of New Affiliated Equity to the extent allocated solely to
this purpose, with the value of such Equity Interests and such New
Affiliated Equity being excluded from such monetary limitations;
"provided that each of the foregoing Acquisitions and Investments shall
be subject to the following conditions:
"(x) no Default or Event of Default shall then exist before or
after giving effect to any such Acquisition or Investment;
"(y) each time that the Borrower and the Designated
Subsidiaries shall complete any single Acquisition or Investment or a
series of Acquisitions or Investments (whether related or unrelated)
having an aggregate Purchase Price with respect to all such
Acquisitions and Investments of greater than or equal to $50,000,000
(with the amount of this basket deemed used by the Borrower and the
Designated Subsidiaries being reset to zero (0) following each delivery
of Projections required hereunder), the Borrower shall provide to the
Arrangers and the Lenders revised Projections assuming consummation of
all Acquisitions and Investments included in such set of Acquisitions
and Investments and demonstrating pro forma compliance with the
Financial Covenants through the Final Maturity Date, after giving
effect to such Acquisition or Investment or series of Acquisitions or
Investments, as applicable, and any Indebtedness incurred in connection
therewith; and
"(z) with respect to any Acquisition structured as an exchange
or swap of Tower Assets, the cash outlay by the Borrower or the
applicable Designated Subsidiary for such Acquisition must be within
the dollar limitations set forth with respect to such Acquisition in
this Section 8.5(v) and the Borrower shall provide to the Arrangers and
the Lenders revised Projections assuming consummation of such
Acquisition and
25
demonstrating pro forma compliance with the Financial Covenants after
giving effect to such Acquisition and any Indebtedness incurred in
connection therewith;"
(f) Section 8.5 of the Credit Agreement, Liquidation; Merger;
Acquisition or Disposition of Assets, is hereby further modified and amended by
deleting subsection (viii) in its entirety and by substituting the following in
lieu thereof:
"(viii) the Borrower and the Designated Subsidiaries may form
BTS Transaction Vehicle Subsidiaries, and may transfer Cingular
Transaction Assets to BTS Transaction Vehicle Subsidiaries, solely for
the purpose of transferring such Cingular Transaction Assets to a
Cingular Purchaser after the Agreement Date pursuant to the terms and
conditions of the SBC Build-to-Suit Termination Agreement, and
notwithstanding anything to the contrary contained in this Agreement or
the other Loan Documents, the Borrower and such Designated Subsidiary
shall not be required to comply with Section 6.9 or 6.15 hereof with
respect to any such Subsidiary to the extent that the Equity Interests
of such Subsidiary shall be transferred to the applicable Cingular
Purchaser promptly after the formation thereof pursuant to the terms
and conditions of the SBC Build-to-Suit Termination Agreement;"
(g) Section 8.5 of the Credit Agreement, Liquidation; Merger;
Acquisition or Disposition of Assets, is hereby further modified and amended by
deleting subsection (x) in its entirety and by substituting the following in
lieu thereof:
"(x) subject to compliance with Sections 6.9 and 6.15 hereof,
the Borrower and the Designed Subsidiaries may form Subsidiaries (other
than BTS Transaction Vehicle Subsidiaries (except as set forth in
Section 8.5(viii) above), additional Domestic SpectraSite Mexico
Subsidiaries or additional Foreign SpectraSite Mexico Subsidiaries)."
23. Amendment to Section 8.7. Section 8.7 of the Credit Agreement,
Restricted Payments and Purchases, is hereby deleted in its entirety and the
following substituted in lieu thereof:
"Section 8.7 Restricted Payments and Purchases. The Borrower
shall not, and shall cause each of the Designated Subsidiaries not to,
directly or indirectly declare or make any Restricted Payment or
Restricted Purchase, except that, so long as no Default or Event of
Default then exists or would result therefrom, any of the Designated
Subsidiaries may make pro rata distributions to holders of Equity
Interests in such Designated Subsidiaries, and the Borrower may (a)
transfer to Holdco all or a portion of the Equity Interests (or
dividend payments made in respect of the Equity Interests) held
directly or indirectly by the Borrower in each of the Unrestricted
Subsidiaries or the Unrestricted Investments to the extent that the
aggregate amount of Investments made by the Borrower and the Designated
Subsidiaries in all such Unrestricted Subsidiaries and Unrestricted
Investments shall not exceed $10,000,000 at any time during the term of
this Agreement; (b) make Restricted Payments or loans to Holdco from
time to time and on an as-needed basis for the purpose of funding fees
and expenses incurred by Holdco in connection with the filing,
administration and implementation of the Chapter 11 Case and approved
by the Court in an aggregate amount not to exceed the Chapter 11
Funding
26
Amount; (c) make Restricted Payments or loans to Holdco from time to
time and on an as-needed basis for the purpose of funding any fees and
expenses incurred by Holdco in connection with negotiations regarding
the restructuring of the debt and capital structure of Holdco in an
aggregate amount not to exceed during the period from the Second
Amendment Date to the filing of the Chapter 11 Case $5,000,000; (d)
make Restricted Payments to Holdco to enable Holdco to make the
following payments when due: (i) interest payments on the Holdco Notes;
(ii) at any time after the Borrower Leverage Ratio shall have been less
than 4.50 to 1.00 for two (2) consecutive fiscal quarters before and
after giving effect to such payment, dividend or interest payments, as
applicable, on Permitted High-Yield Securities issued after the
Agreement Date in connection with an Eligible Debt Offering or an
Eligible Equity Offering, in each case following expiration of any
required payment-in-kind period applicable thereto; (iii) to the extent
that such payments are required in the ordinary course of business and
relate directly to the Borrower or any of the Designated Subsidiaries,
or to services provided for or on behalf of the Borrower or any of the
Designated Subsidiaries, payments, in each case that are required to be
paid in cash, when due of (A) corporate franchise fees and taxes
actually owed by Holdco, (B) legal and accounting fees and expenses
actually incurred by Holdco, (C) costs incurred to comply with Holdco's
reporting obligations under federal or state laws, including, without
limitation, reports filed with respect to the Securities Act, the
Exchange Act or the respective rules and regulations promulgated
thereunder and (D) other customary corporate overhead expenses; (iv)
payments of `Additional Interest' (as that term is defined in the
Registration Rights Agreements entered into in connection with the
Holdco Notes) and any other comparable payments in respect of other
Permitted High-Yield Securities; and (v) payments to repurchase Equity
Interests in Holdco owned by employees, officers and directors of
Holdco upon their death, disability or termination of employment or
service, in an aggregate amount not to exceed $10,000,000 during any
year or $15,000,000 during the term of this Agreement; (e) make
dividend payments to holders of Permitted High-Yield Securities of the
Borrower following expiration of any required payment-in-kind period
applicable thereto at any time after the Borrower Leverage Ratio shall
have been less than 4.50 to 1.00 for two (2) consecutive fiscal
quarters before and after giving effect to such payment; and (f) make
Restricted Payments to Holdco to enable Holdco to repurchase fractional
shares of the common Equity Interests of Holdco resulting from the
consummation of any reverse stock split effected by Holdco in aggregate
amount not to exceed $400,000 during the term of this Agreement."
24. Amendments to Article 9.
(a) Section 9.1 of the Credit Agreement, Borrower Leverage
Ratio, is hereby modified and amended by (i) deleting the word "The" at the
beginning thereof and substituting "(a) After expiration of the Amendment
Period, the" in lieu thereof and (ii) by adding the following new subsection (b)
at the end thereof:
"(b) The Borrower shall not permit as of the end of any fiscal
quarter ended during the Amendment Period, or as of the date of any
Advance under this Agreement made during the Amendment Period, the
Borrower Leverage Ratio (if applicable, after
27
giving effect to such Advance) to exceed the applicable ratio for such
date during the periods as set forth below:
"Quarters Ending: Ratio:
----------------- ------
Second Amendment Date through September 29, 2002 7.00 to 1.00
September 30, 2002 through February 15, 2003 7.25 to 1.00
February 16, 2003 through May 15, 2003 6.95 to 1.00
May 16, 2003 through August 15, 2003 6.45 to 1.00
August 16, 2003 through September 30, 2003 6.00 to 1.00"
(b) Amendment to Section 9.2. Section 9.2 of the Credit
Agreement, Borrower Interest Coverage Ratio, is hereby modified and amended by
(i) deleting the word "The" at the beginning thereof and substituting "After
expiration of the Amendment Period, the" in lieu thereof, and (ii) by adding the
sentence "The Borrower Interest Coverage Ratio will not be tested during the
Amendment Period." at the end thereof.
(c) Amendment to Section 9.3. Section 9.3 of the Credit
Agreement, Total Interest Coverage Ratio, is hereby modified and amended by (i)
deleting the word "The" at the beginning thereof and substituting "(a) After
expiration of the Amendment Period, the" in lieu thereof and (ii) by adding the
following new subsection (b) at the end thereof:
"(b) The Borrower shall not permit, as of any date during the
Amendment Period, the Total Interest Coverage Ratio to be less than the
applicable ratio for such date during the periods as set forth below:
"Quarters Ending: Ratio:
---------------- ------
Second Amendment Date through April 30, 2003 1.75 to 1.00
May 1, 2003 through September 30, 2003 2.00 to 1.00"
(d) Amendment to Section 9.4. Section 9.4 of the Credit
Agreement, Fixed Charge Coverage Ratio, is hereby modified and amended by (i)
deleting the word "The" at the beginning thereof and substituting "(a) After
expiration of the Amendment Period, the" in lieu thereof and (ii) by adding the
following new subsection (b) at the end thereof:
"(b) The Borrower shall not permit as of the end of any fiscal
quarter ended during the Amendment Period, the Fixed Charge Coverage
Ratio to be less than the ratio specified below with respect to such
fiscal quarter end:
"Quarters Ending: Ratio:
---------------- ------
Second Amendment Date through December 31, 2002 1.00 to 1.00
January 1, 2003 through September 30, 2003 1.10 to 1.00
28
25. Amendments to Article 10.
(a) Section 10.1 of the Credit Agreement, Events of Default,
is hereby modified and amended by deleting clause (i) from subsection (b) and by
substituting the following in lieu thereof:
"(i) The Borrower shall default in the payment of any principal of the
Loans when due"
(b) Section 10.1 of the Credit Agreement, Events of Default,
is hereby further modified and amended by adding the following new concluding
paragraph at the end thereof:
"Notwithstanding anything to the contrary contained in the foregoing,
no Default or Event of Default shall occur and be continuing under this
Agreement as a result of any of the following except to the extent set
forth herein: (i) the filing and existence of the Chapter 11 Case;
provided, however, to the extent that (A) an Acceptable Restructuring
Plan shall not have been confirmed by the Court with respect to the
Chapter 11 Case and have been effective prior to September 30, 2003, or
(B) a plan of reorganization is confirmed by the Court with respect to
the Chapter 11 Case which does not constitute an Acceptable
Restructuring Plan, the filing and existence of the Chapter 11 Case
shall be deemed to constitute an Event of Default effective as of
September 30, 2003, or, if earlier, the date of confirmation of such
plan of reorganization; (ii) the failure by Holdco to make payments
when due with respect to the Holdco Notes during the Amendment Period
to the extent such payments shall have been due prior to the filing of
or during the continuation of the Chapter 11 Case; (iii) acceleration
of payment of the Holdco Notes by the holders thereof or the filing of
a petition against Holdco seeking relief of a type described in Section
10.1(f) hereof, provided that within thirty (30) days of the earlier of
such acceleration or filing either (A) such acceleration or petition
shall have been rescinded, dismissed or ceased to exist, or (B) Holdco
commences, or converts the case initiated by the holders of the Holdco
Notes to, a voluntary Chapter 11 Case; (iv) arising solely as a result
of the circumstances described in the foregoing clauses (i), (ii) and
(iii), the existence of any restriction under the Bankruptcy Code which
may require Court approval prior to any action by the Collateral Agent
and the other Credit Parties to enforce their security interest in the
Borrower's Equity Interests pledged to the Collateral Agent pursuant to
the Holdco Pledge Agreement; (v) any breach of the representations and
warranties set forth in Section 5.1(g) of the Credit Agreement arising
solely as a result of the circumstances described in the foregoing
clauses (i), (ii) and (iii); and (vi) the delivery of any opinion by
Holdco's certified public accountants in connection with their audit of
the financial statements and position of Holdco and its Subsidiaries
containing a qualification relating to circumstances described in the
foregoing clauses (i), (ii) and (iii)."
(c) Section 10.2 of the Credit Agreement, Remedies, is hereby
modified and amended by deleting the phrase "Upon acceleration of the Notes,"
from each of subsections (d) and (e) thereof and by substituting "Upon
acceleration of the Loans," in lieu thereof.
26. Amendments to Article 12.
29
(a) Section 12.2 of the Credit Agreement, Illegality, is
hereby modified and amended by deleting the term "Note" from each place that
such term appears in the last sentence thereof and by substituting the term
"Loans" in lieu thereof.
(b) Section 12.3 of the Credit Agreement, Increased Costs, is
hereby modified and amended by deleting the term "Note" from each place that
such term appears in the last sentence of subsection (b) and by substituting the
term "Loans" in lieu thereof.
27. Amendments to Article 13.
(a) Section 13.1 of the Credit Agreement, Notices, is hereby
modified and amended by deleting clause (i) in its entirety and by substituting
the following in lieu thereof:
"(i) If to the Borrower, to it at:
SpectraSite Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇"
(b) Section 13.15 of the Credit Agreement, Loan Documents, is
hereby modified and amended by deleting the term "Notes" from first sentence
thereof and by substituting the term "Loans" in lieu thereof.
(c) Section 13.16 of the Credit Agreement, Reliance On and
Survival of Various Provisions, is hereby modified and amended by deleting
clause (ii) from the first sentence thereof in its entirety and by substituting
the following in lieu thereof:
"(ii) shall survive the execution and delivery of this Agreement and
the other Loan Documents and shall continue in full force and effect so
long as any of the Obligations are outstanding and unpaid"
28. Amendments to Exhibits.
(a) Exhibit D to the Credit Agreement, Form of Holdco Pledge
Agreement, is hereby deleted in its entirety and Exhibit D attached hereto, Form
of Holdco Pledge Agreement, is substituted in lieu thereof.
30
(b) Exhibit I to the Credit Agreement, Form of Performance
Certificate, is hereby deleted in its entirety and Exhibit I attached hereto is
substituted in lieu thereof.
29. Amendments to Schedules.
(a) Schedule 1 attached hereto is hereby added as Schedule 1
to the Credit Agreement, Broadcast Business.
(b) Schedule 2 attached hereto is hereby added as Schedule 2
to the Credit Agreement, Cingular Transaction Assets.
(c) Schedule 3 attached hereto is hereby added as Schedule 3
to the Credit Agreement, Network Services Business.
(d) Schedule 5.1(i) to the Credit Agreement, Litigation, is
hereby deleted in its entirety and Schedule 5.1(i) attached hereto is
substituted in lieu thereof.
(e) Schedule 5.1(s) to the Credit Agreement, Agreements with
Affiliates, is hereby deleted in its entirety and Schedule 5.1(s) attached
hereto is substituted in lieu thereof.
30. Reduction of Tranche A Commitment. The Borrower has requested, and
the Administrative Agent and the Credit Parties have agreed, to a voluntary
permanent reduction of the Tranche A Commitment in the aggregate amount of
$165,000,000 to be effective as of the Second Amendment Date. This reduction of
the Tranche A Commitment is reflected in the amendments to the Credit Agreement
set forth above. The Borrower, the Administrative Agent and the Credit Parties
hereby agree that (a) the Tranche A Commitment shall be permanently reduced to
$335,000,000 as of the Second Amendment Date and (b) such reduction shall be
applied to reduce the remaining scheduled installments of the Tranche A Loans as
set forth in Section 2.5 of the Credit Agreement (after giving effect to this
Amendment).
31. Reduction of Revolving Commitment. The Borrower has requested, and
the Administrative Agent and the Credit Parties have agreed, to a voluntary
permanent reduction of the Revolving Commitment in the aggregate amount of
$50,000,000 to be effective as of the Second Amendment Date. This reduction of
the Revolving Commitment is reflected in the amendments to the Credit Agreement
set forth above. The Borrower, the Administrative Agent and the Credit Parties
hereby agree that (a) the Revolving Commitment shall be permanently reduced to
$300,000,000 as of the Second Amendment Date and (b) such reduction shall be
applied to reduce the remaining scheduled installments of the Revolving Loans as
set forth in Section 2.5 of the Credit Agreement (after giving effect to this
Amendment).
32. Release of Cingular Transaction Assets. Simultaneously with
consummation of the Cingular Transaction and receipt by the Administrative Agent
of the Net Cash Proceeds received by the Borrower and the Designated
Subsidiaries in connection therewith as a mandatory payment of the Loans as
required by Section 2.7(b)(i) of the Credit Agreement, the Credit Parties hereby
authorize the Collateral Agent to execute and deliver a letter, in form and
substance satisfactory to the Collateral Agent, to Cingular and SBC Wireless
providing for the release of the Collateral Agent's security interests in and
Liens on the Cingular Transaction Assets to be
31
disposed of and directly or indirectly transferred to the Cingular Purchasers
pursuant to the Cingular Transaction.
33. No Other Amendments. Except for the amendments, releases,
authorizations and waivers set forth above, the text of the Credit Agreement and
the other Loan Documents shall remain unchanged and in full force and effect,
and the Administrative Agent and the Credit Parties hereby reserve the right to
require strict compliance with the terms of the Credit Agreement and the other
Loan Documents in the future.
34. Amendment Fee. The Borrower hereby agrees to pay, upon the
Effective Date (as defined in Section 35 below), to each Lender delivering its
consent to this Amendment on or before 5:00 p.m. (Eastern Daylight Time) on
August 19, 2002, an amendment fee (the "Amendment Fee") in the amount of 25
basis points on the amount of such Lender's Revolving Commitment and Term Loans
as of the Effective Date after giving effect to the reduction of the Tranche A
Commitment contemplated in connection herewith. The Amendment Fee shall be fully
earned when due and non-refundable when paid.
35. Conditions to Effectiveness. This Amendment will be effective as of
August 20, 2002 (the "Effective Date"), subject to the occurrence of each of the
following on or before such date:
(a) The Administrative Agent shall have received a counterpart
hereof duly executed by the Borrower and Holdco, and by the Majority Lenders, or
the Majority Pro Rata Lenders and the Majority Tranche B Lenders, as applicable.
(b) The Administrative Agent shall have received each of the
following in form and substance satisfactory to the Administrative Agent and its
counsel:
(i) The Holdco Pledge Agreement duly executed by Holdco
and the Collateral Agent, together with appropriate original
certificates representing the certificated Equity Interests pledged
thereunder and corresponding undated certificate powers with respect
thereto executed in blank, and appropriate UCC-1 Financing Statements
with respect to the uncertificated Equity Interest pledged thereunder;
(ii) The Reaffirmation and Consent Agreement duly executed
by each of the Subsidiary Guarantors; and
(iii) The First Amendment to Borrower Pledge Agreement
reflecting the pledge of the Equity Interests of FiberTower Corporation
and SpectraSite Building Group, Inc., thereunder, together with
appropriate original certificates representing these Equity Interests
and corresponding undated certificate powers with respect thereto
executed in blank.
(c) The Administrative Agent shall have received irrevocable
written notice from the Borrower electing to permanently reduce the Tranche A
Commitment by $165,000,000 and electing to permanently reduce the Revolving
Commitment by $50,000,000.
32
(d) The Administrative Agent shall have received updated
Projections through the Final Maturity Date, a copy of which is attached hereto
as Annex I.
(e) The Administrative Agent shall have received (i) a copy of
the Borrower's quarterly financial statements for the quarter ended June 30,
2002, and for each subsequent month for which financial statements are then
available, together with a Performance Certificate providing calculations
demonstrating that the Borrower Leverage Ratio (prior to giving effect to the
amendments proposed hereby) as of June 30, 2002, shall have been less than 6.00
to 1.00, and (ii) calculations, as set forth in Annex II attached hereto, of
EBITDA of the Borrower and the Designated Subsidiaries (on a pro forma basis for
the re-designation of the Subsidiaries comprising the Network Services Business
as Unrestricted Subsidiaries) as of June 30, 2002, which EBITDA is $123,649,000.
(f) The Borrower shall have certified that no event shall have
occurred since December 31, 2001, that could reasonably be expected to have,
individually or in the aggregate, a Materially Adverse Effect.
(g) All of the representations and warranties of Holdco and
the Borrower set forth in the Credit Agreement and this Amendment, other than
those that are expressly made as of a specific date, shall be true and correct
in all material respects with the same effect as though such representations and
warranties had been made on and as of the Effective Date as though made on and
as of such date.
(h) The Credit Parties shall have received payment of all fees
and expenses (including, without limitation, the Amendment Fee and legal fees
and expenses) due and payable on the Effective Date in respect of the Credit
Agreement, this Amendment and the transactions contemplated hereby and thereby.
(i) The Administrative Agent shall have received such other
information, documents, instruments or approvals as the Administrative Agent or
its counsel may reasonably require.
36. Post-Closing Covenants. As a further condition to the amendments
and consents set forth in this Amendment, the Borrower shall perform or cause to
be performed the following (the failure by the Borrower to so perform or cause
to be performed for any reason constituting an Event of Default under the Credit
Agreement):
(a) Promptly upon the closing of the Cingular Transaction, the
Borrower shall deliver to the Arrangers a full set of copies of the documents
executed in connection with the Cingular Transaction (including, without
limitation, a copy of the legal opinions, if any, given in connection with the
Cingular Transaction and letters permitting the Credit Parties to rely thereon
and a copy of any solvency opinions given in connection with the Cingular
Transaction), which documents shall not differ materially from the drafts
thereof furnished to the Arrangers prior to the Effective Date as identified on
Annex IV attached hereto.
(b) Within thirty (30) days following the Effective Date,
counsel to the Administrative Agent shall engage, on behalf of the Credit
Parties, a financial advisor to review
33
the Borrower's financial performance (including, without limitation, the
performance of the Network Services Business and the costs and expenses relating
to the operation and any proposed discontinuation thereof) and to provide advice
to the Credit Parties in connection with the financial condition of the Borrower
and the restructuring of the debt and capital structure of Holdco and the
Borrower. The Borrower shall promptly pay or reimburse all reasonable fees and
expenses of such financial advisor.
(c) Within ninety (90) days following the effective date of an
Acceptable Restructuring Plan, the Borrower shall seek an updated credit rating
from Standard & Poor's and ▇▇▇▇▇'▇ rating services.
37. Representations and Warranties. Each of the Borrower and Holdco,
for itself and on behalf of each of its Subsidiaries, agrees, represents and
warrants in favor of the Administrative Agent and the Credit Parties that:
(a) This Amendment has been executed and delivered by duly
authorized representatives of the Borrower and Holdco, and the Credit Agreement,
as modified and amended by this Amendment, constitutes a legal, valid and
binding obligation of the Borrower and Holdco and is enforceable against the
Borrower and Holdco in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by the application of general equitable
principles;
(b) Each representation or warranty of Holdco, the Borrower
and the Designated Subsidiaries set forth in the Credit Agreement is hereby
restated and reaffirmed as true and correct in all material respects on and as
of the date of this Amendment, and after giving effect to this Amendment, as if
such representation or warranty were made on and as of the date of, and after
giving effect to, this Amendment (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period);
(c) After giving effect to this Amendment, no Default or Event
of Default with respect to the Borrower or Holdco has occurred and is
continuing; and
(d) As of the date hereof, (i) the property of the Borrower,
at a fair valuation on a going concern basis, will exceed its debt; (ii) the
capital of the Borrower will not be unreasonably small to conduct its business;
and (iii) the Borrower will not have incurred debts, or have intended to incur
debts, beyond its ability to pay such debts as they mature.
38. Release. As further consideration to induce the Lenders to execute,
deliver and perform this Amendment, each of the Borrower (for itself and each of
its Subsidiaries) represents and warrants that there are no claims, causes of
action, suits, debts, obligations, liabilities, demands of any kind, character
or nature whatsoever, fixed or contingent, which the Borrower, any Subsidiary of
the Borrower, or Holdco may have, or claim to have, against the Credit Parties
or any of them, with respect to the subject matter hereof, the Loan Documents or
matters relating thereto, and each of the Borrower (for itself and each of its
Subsidiaries) hereby releases, acquits and forever discharges the Credit Parties
and each of them, and their respective agents, employees, officers, directors,
servants, representatives, attorneys, affiliates, successors and assigns
(collectively, the "Released Parties") from any and all liabilities, claims,
suits, debts,
34
causes of action and the like of any kind, character or nature whatsoever, known
or unknown, fixed or contingent that the Borrower, any Subsidiary of the
Borrower, or Holdco may have, or claim to have, against each of the such
Released Parties with respect to the subject matter hereof, the Loan Documents
or matters relating thereto from the beginning of time until and through the
dates of execution and delivery of this Amendment.
39. Effect on the Credit Agreement. Except as specifically provided
herein, the Credit Agreement shall remain in full force and effect, and is
hereby ratified, reaffirmed and confirmed. This Amendment shall be deemed to be
a Loan Document for all purposes.
40. Counterparts. This Amendment may be executed in any number of
separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
41. Delivery of Lender Addenda. Each Credit Party shall become a party
to this Agreement by delivering to the Administrative Agent a Lender Addendum,
substantially in the form of Annex III attached hereto, duly executed by such
Credit Party.
42. Law of Contract. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
35
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
BORROWER: SPECTRASITE COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
-----------------------------------
HOLDCO: SPECTRASITE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Title: Vice President
-----------------------------------
ADMINISTRATIVE
AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Managing Director, CIBC World
------------------------------------
Markets Corp., as Agent
------------------------------------
AS LEAD ARRANGER
AND ARRANGER: CIBC WORLD MARKETS CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Managing Director, CIBC World
------------------------------------
Markets Corp., as Agent
------------------------------------
AS LEAD ARRANGER,
ARRANGER AND
SYNDICATION AGENT: CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Director
------------------------------------
By: /s/ ▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Director
------------------------------------
AS ARRANGER AND
DOCUMENTATION
AGENT: BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
------------------------------------
AS ARRANGER AND
DOCUMENTATION
AGENT: TD SECURITIES (USA) INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Director
------------------------------------