EXHIBIT 10.2
AMENDED AND RESTATED
LOAN AGREEMENT
AMONG
AMERICAN TOWER SYSTEMS, INC.;
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR
AS BANKS ON THE SIGNATURE PAGES HEREOF;
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
FOR THE BANKS
Dated as of October 15, 1997
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Atlanta, Georgia
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS................................................................................... 2
ARTICLE 2 LOANS......................................................................................... 20
Section 2.1 The Loans......................................................................... 20
Section 2.2 Manner of Borrower and Disbursement............................................... 21
Section 2.3 Interest.......................................................................... 23
Section 2.4 Commitment Fees................................................................... 25
Section 2.5 Mandatory Commitment Reductions................................................... 26
Section 2.6 Voluntary Commitment Reductions................................................... 28
Section 2.7 Prepayments and Repayments........................................................ 29
Section 2.8 Notes; Loan Accounts.............................................................. 30
Section 2.9 Manner of Payment................................................................. 30
Section 2.10 Reimbursement..................................................................... 31
Section 2.11 Pro Rata Treatment................................................................ 32
Section 2.12 Capital Adequacy.................................................................. 32
Section 2.13 Bank Tax Forms.................................................................... 33
ARTICLE 3 CONDITIONS PRECEDENT.......................................................................... 33
Section 3.1 Conditions Precedent to Effectiveness of this Amendment and Restatement
Section 3.2 Conditions Precedent to Each Advance.............................................. 35
ARTICLE 4 REPRESENTATIONS AND WARRANTIES................................................................ 36
Section 4.1 Representations and Warranties.................................................... 36
Section 4.2 Survival of Representations and Warranties, Etc................................... 43
ARTICLE 5 GENERAL COVENANTS............................................................................. 43
Section 5.1 Preservation of Existence and Similar Matters..................................... 43
Section 5.2 Business; Compliance with Applicable Law.......................................... 43
Section 5.3 Maintenance of Properties......................................................... 44
Section 5.4 Accounting Methods and Financial Records.......................................... 44
Section 5.5 Insurance......................................................................... 44
Section 5.6 Payment of Taxes and Claims....................................................... 45
Section 5.7 Compliance with ERISA............................................................. 45
Section 5.8 Visits and Inspections............................................................ 47
Section 5.9 Payment of Indebtedness; Loans.................................................... 47
Section 5.10 Use of Proceeds................................................................... 47
Section 5.11 Real Estate....................................................................... 48
Section 5.12 Indemnity......................................................................... 48
Section 5.13 Interest Rate Hedging............................................................. 49
Section 5.14 Covenants Regarding Formation of Restricted Subsidiaries and
Acquisitions; Partnership, Subsidiaries......................................... 49
TABLE OF CONTENTS
(Continued)
Page
Section 5.15 Payment of Wages.................................................................. 50
Section 5.16 Further Assurances................................................................ 50
ARTICLE 6 INFORMATION COVENANTS......................................................................... 51
Section 6.1 Quarterly Financial Statements and Information.................................... 51
Section 6.2 Annual Financial Statements and Information....................................... 51
Section 6.3 Performance Certificates.......................................................... 52
Section 6.4 Copies of Other Reports........................................................... 52
Section 6.5 Notice of Litigation and Other Matters............................................ 53
Section 6.6 Real Estate....................................................................... 54
ARTICLE 7 NEGATIVE COVENANTS............................................................................ 54
Section 7.1 Indebtedness of the Borrower and its Subsidiaries................................. 54
Section 7.2 Limitation on Liens............................................................... 55
Section 7.3 Amendment and Waiver.............................................................. 55
Section 7.4 Liquidation, Merger or Disposition of Assets...................................... 55
Section 7.5 Limitation on Guaranties.......................................................... 56
Section 7.6 Investments and Acquisitions...................................................... 57
Section 7.7 Restricted Payments............................................................... 58
Section 7.8 Leverage Ratio.................................................................... 58
Section 7.9 Interest Coverage Ratio........................................................... 59
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service.......................... 59
Section 7.11 Limitation on Capital Expenditures................................................ 60
Section 7.12 Affiliate Transactions............................................................ 60
Section 7.13 Real Estate....................................................................... 60
Section 7.14 ERISA Liabilities................................................................. 61
Section 7.15 Sales and Leasebacks.............................................................. 61
ARTICLE 8 DEFAULT....................................................................................... 61
Section 8.1 Events of Default................................................................. 61
Section 8.2 Remedies.......................................................................... 64
Section 8.3 Payments Subsequent to Declaration of Event of Default............................ 66
ARTICLE 9 THE ADMINISTRATIVE AGENT...................................................................... 67
Section 9.1 Appointment and Authorization..................................................... 67
Section 9.2 Interest Holders.................................................................. 67
Section 9.3 Consultation with Counsel......................................................... 67
Section 9.4 Documents......................................................................... 67
Section 9.5 Administrative Agent and Affiliates............................................... 68
Section 9.6 Responsibility of the Administrative Agent........................................ 68
Section 9.7 Action by the Administrative Agent................................................ 68
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TABLE OF CONTENTS
(Continued)
Page
Section 9.8 Notice of Default or Event of Default............................................. 69
Section 9.9 Responsibility Disclaimed......................................................... 69
Section 9.10 Indemnification................................................................... 70
Section 9.11 Credit Decision................................................................... 70
Section 9.12 Successor Administrative Agent.................................................... 71
Section 9.13 Delegation of Duties.............................................................. 71
ARTICLE 10 CHANGES IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES............................................ 72
Section 10.1 LIBOR Basis Determination Inadequate or Unfair.................................... 72
Section 10.2 Illegality........................................................................ 72
Section 10.3 Increased Costs................................................................... 73
Section 10.4 Effect On Other Advances.......................................................... 74
ARTICLE 11 MISCELLANEOUS................................................................................ 74
Section 11.1 Notices........................................................................... 74
Section 11.2 Expenses.......................................................................... 76
Section 11.3 Waivers........................................................................... 76
Section 11.4 Set-Off........................................................................... 77
Section 11.5 Assignment........................................................................ 77
Section 11.6 Accounting Principles............................................................. 80
Section 11.7 Counterparts...................................................................... 80
Section 11.8 Governing Law..................................................................... 80
Section 11.9 Severability...................................................................... 81
Section 11.10 Interest ......................................................................... 81
Section 11.11 Table of Contents and Headings.................................................... 81
Section 11.12 Amendment and Waiver.............................................................. 81
Section 11.13 Entire Agreement.................................................................. 82
Section 11.14 Other Relationships............................................................... 82
Section 11.15 Directly or Indirectly............................................................ 82
Section 11.16 Reliance on and Survival of Various Provisions.................................... 82
Section 11.17 Senior Debt....................................................................... 83
Section 11.18 Obligations....................................................................... 83
Section 11.19 Confidentiality................................................................... 83
ARTICLE 12 WAIVER OF JURY TRIAL......................................................................... 83
Section 12.1 Waiver of Jury Trial.............................................................. 83
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EXHIBITS
Exhibit A Form of Activation Notice
Exhibit B Form of Borrower's Pledge Agreement
Exhibit C Form of Borrower's Security Agreement
Exhibit D Form of Certificate of Financial Condition
Exhibit E Form of Promissory Note
Exhibit F Form of Parent Pledge Agreement
Exhibit G - Form of Request for Advance
Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of Subsidiary Pledge Agreement
Exhibit J - Form of Subsidiary Security Agreement
Exhibit K - Form of Use of Proceeds Letter
Exhibit L - Form of Borrower's Loan Certificate
Exhibit M - Form of Subsidiary Loan Certificate
Exhibit N - Form of Performance Certificate
Exhibit 0 - Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 - Licenses
Schedule 2 - List of Unrestricted Subsidiaries on the
Agreement Date
Schedule 4. 1 (a) - Exceptions to Representations and Warranties
Schedule 4. 1 (c) - Subsidiaries
Schedule 4. 1 (i) - Litigation
Schedule 4. 1 (s) - Affiliate Transactions
Schedule 4. I (v) - Indebtedness
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AMENDED AND RESTATED
LOAN AGREEMENT
AMONG
AMERICAN TOWER SYSTEMS, INC.;
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR
AS BANKS ON THE SIGNATURE PAGES HEREOF;
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
FOR THE BANKS
WHEREAS, the Borrower, the Administrative Agent and the Banks are all
parties to that certain Loan Agreement dated as of November 22, 1996 (the "Prior
Loan Agreement"); and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Banks consent to certain amendments to the Prior Loan Agreement, as more
fully set forth in this Amended and Restated Loan Agreement; and
WHEREAS, the Administrative Agent and the Banks have agreed to amend
and restate the Prior Loan Agreement in its entirety as set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that the security
interest granted to the Administrative Agent, for itself and on behalf of the
Banks pursuant to the Prior Loan Agreement and the Loan Documents (as defined in
the Prior Loan Agreement) executed in connection therewith shall remain
outstanding and in full force and effect in accordance with the Prior Loan
Agreement and shall continue to secure the Obligations (as defined therein); and
WHEREAS, the Borrower acknowledges and agrees that (i) the Obligations
(as defined herein) represent, among other things, the amendment, restatement,
renewal, extension, consolidation and modification of the Obligations (as
defined in the Prior Loan Agreement) arising in connection with the Prior Loan
Agreement and the other Loan Documents (as defined in the Prior Loan Agreement)
executed in connection therewith; (ii) the parties hereto intend that the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith and the collateral pledged
thereunder shall secure, without interruption or impairment of any kind, all
existing Indebtedness under the Prior Loan Agreement and the other Loan
Documents (as defined in the Prior Loan Agreement) executed in connection
therewith as so amended, restated, restructured, renewed, extended, consolidated
and modified hereunder, together with all other Obligations hereunder; (iii) all
Liens evidenced by the Prior Loan Agreement and the
other Loan Documents (as defined in the Prior Loan Agreement) executed in
connection therewith are hereby ratified, confirmed and continued; and (iv) the
Loan Documents (as defined herein) are intended to restructure, restate, renew,
extend, consolidate, amend and modify the Prior Loan Agreement and the other
Loan Documents (as defined in the Prior Loan Agreement) executed in connection
therewith; and
WHEREAS, the parties hereto intend that (i) the provisions of the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith, to the extent restructured,
restated, renewed, extended, consolidated, amended and modified hereby, are
hereby superseded and replaced by the provisions hereof and of the Loan
Documents (as defined herein); and (ii) the Notes (as hereinafter defined)
amend, renew, extend, modify, replace, are substituted for and supersede in
their entirety, but do not extinguish the indebtedness arising under the
promissory notes issued pursuant to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1 Definitions
For the purposes of this Agreement:
"Acquisition" shall mean (whether by purchase, lease, exchange,
issuance of stock or other equity or debt securities, merger, reorganization or
any other method) (i) any acquisition by the Borrower or any Restricted
Subsidiary of any other Person, which Person shall then become consolidated with
the Borrower or any such Restricted Subsidiary in accordance with GAAP; (ii) any
acquisition by the Borrower or any Restricted Subsidiary of all or any
substantial part of the assets of any other Person; or (iii) any acquisition by
Borrower or any Restricted Subsidiary of any communications tower facilities,
communications tower management businesses or related contracts, other than any
such Acquisition which shall be made by, or of, any Person which shall have been
designated and approved as an Unrestricted Subsidiary.
"Acquisition Operating Cash Flow" shall mean in the case of an
Acquisition permitted hereunder, Operating Cash Flow of the Borrower and its
Restricted Subsidiaries for the period during which such Acquisition occurs,
adjusted (A) to give effect to such Acquisition, as if such Acquisition had
occurred on the first day of such period, by excluding the Operating Cash Flow
of such Acquisition during such period prior to the date of such Acquisition and
adding to the Operating Cash Flow of the Borrower, if positive, or subtracting
from such Operating Cash Flow, if negative, the product of (i) the actual
Operating Cash Flow of such Acquisition for that portion of such period from the
date of
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such Acquisition to the last day of such period, multiplied by (ii) a fraction
the numerator of which is the number of calendar days in such period and the
denominator of which is the number of days in such period from and including the
date of such Acquisition through the last day of such period.
"Activation Notice" shall be a notice from the Borrower to the
Administrative Agent in substantially the form of Exhibit A attached hereto
pursuant to which the Borrower notifies the Administrative Agent on or prior to
October 15, 1998, that it is activating the Commitment Increase.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., in
its capacity as Administrative Agent for the Banks or any successor
Administrative Agent appointed pursuant to Section 9.12 hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, or such other office as may be designated pursuant to the provisions of
Section 11.1 hereof.
"Advance" shall mean amounts advanced by the Banks to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For purposes of this definition, "control" when used with
respect to any Person includes, without limitation, the direct or indirect
beneficial ownership of more than ten percent (10%) of the voting securities or
voting equity of such Person or the power to direct or cause the direction of
the management and policies of such Person whether by contract or otherwise. For
purposes of this Agreement, American Radio Systems and its Affiliates shall be
deemed to be Affiliates of the Borrower.
"Agreement" shall mean this Amended and Restated Loan Agreement, as
amended, supplemented, restated or otherwise modified from time to time.
"Agreement Date" shall mean October 15, 1997.
"American Radio Systems" shall mean American Radio Systems Corporation,
a Delaware corporation.
"Annualized Operating Cash Flow" shall mean (a) for any calculation
date up to and including September 30, 1998, the sum of (i) the product of (A)
Operating Cash Flow (Towers) for the calendar month-end being tested or the most
recently completed calendar
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month immediately preceding such calculation date, as the case may be, times (B)
twelve (12) and (ii) the product of (A) Operating Cash Flow (Other Business) for
the fiscal quarter end being tested or the most recently completed fiscal
quarter immediately preceding such calculation date, times (B) four (4); and (b)
for any calculation date after September 30, 1998, the product of (i) Operating
Cash Flow for the fiscal quarter-end being tested or the most recently completed
fiscal quarter immediately preceding such calculation date, as the case may be,
times (ii) four (4).
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limiting
the foregoing, the Licenses, the Communications Act, zoning ordinances and all
Environmental Laws, and all orders, decisions, judgments and decrees of all
courts and arbitrators in proceedings or actions to which the Person in question
is a party or by which it is bound.
"Applicable Margin" shall mean the interest rate margin applicable to
Base Rate Advances and LIBOR Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof.
"Applicable Margin Ratio" shall mean, as of any date, the ratio of (a)
the Total Debt of the Borrower and its Restricted Subsidiaries on a consolidated
basis on such date to (b) the product of (i) Operating Cash Flow of the Borrower
and its Restricted Subsidiaries, for the most recently completed fiscal quarter
times (ii) four (4).
"Authorized Signatory" shall mean such senior personnel of a Person as
may be duly authorized and designated in writing by such Person to execute
documents, agreements and instruments on behalf of such Person.
"Available Commitment" shall mean the lesser of (i) the Existing
Commitment and (ii) the maximum amount of the Loans that could be outstanding
hereunder on such date without resulting in a breach of Section 7.8 or Section
7.10 hereof.
"Banks" shall mean the Persons whose names appear as "Banks" on the
signature pages hereof and any other Person which becomes a "Bank" hereunder
after the Agreement Date; and "Bank" shall mean any one of the foregoing Banks.
"Base Rate" shall mean, at any time, a fluctuating interest rate per
annum equal to the higher of (a) the rate of interest quoted from time to time
by the Administrative Agent as its "prime rate" or "base rate" or (b) the
Federal Funds Rate plus one-half of one percent (1/2%). The Base Rate is not
necessarily the lowest rate of interest charged by the Administrative Agent in
connection with extensions of credit.
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"Base Rate Advance" shall mean an Advance which the Borrower requests
to be made as a Base Rate Advance or is reborrowed as a Base Rate Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $1,000,000, and in an integral multiple of
$500,000.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of
(i) the Base Rate and (ii) the Applicable Margin applicable to Base Rate
Advances. The Base Rate Basis shall be adjusted automatically as of the opening
of business on the effective date of each change in the Base Rate to account for
such change, and shall also be adjusted to reflect changes of the Applicable
Margin applicable to Base Rate Advances.
"Borrower" shall mean American Tower Systems, Inc., a Delaware
corporation.
"Borrower's Pledge Agreement" shall mean that certain Amended and
Restated Borrower's Pledge Agreement dated as of even date herewith between the
Borrower and the Administrative Agent, substantially in the form of Exhibit B
attached hereto, pursuant to which the Borrower has pledged to the
Administrative Agent for the ratable benefit of the Banks all of the Borrower's
stock ownership and/or any partnership interests in each of its Subsidiaries.
"Borrower's Security Agreement" shall mean that certain Amended and
Restated Security Agreement dated as of even date herewith, made by the Borrower
in favor of the Administrative Agent for the ratable benefit of the Banks,
substantially in the form of Exhibit C attached hereto.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
Houston, Texas, New York, New York and London, England, as relevant to the
determination to be made or the action to be taken.
"Capital Expenditures" shall mean, for any period, expenditures
(including the aggregate amount of Capitalized Lease Obligations required to be
paid during such period) incurred by any Person to acquire or construct fixed
assets, plant and equipment (including renewals, improvements and replacements,
but excluding repairs and maintenance) during such period, which would be
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
"Capital Stock" shall mean, as applied to any Person, any capital stock
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
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"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"Certificate of Financial Condition" shall mean a certificate,
substantially in the form of Exhibit D attached hereto, signed by the chief
financial officer of the Borrower, together with any schedules, exhibits or
annexes appended thereto.
"Change of Control" shall mean (a) any change in the ownership of, or
lien upon, the stock of the Borrower that results in less than fifty-one percent
(51%) of all voting rights with respect to the Capital Stock of the Borrower
(including, without limitation, warrants, options, conversion rights, voting
rights and calls or claims of any character with respect thereto, to the extent
exercisable prior to repayment in full of the Obligations) being owned, directly
or indirectly, by the Parent, the senior management of American Radio Systems,
or Affiliates of American Radio Systems, the Parent or the Borrower or (b) after
any acquisition of all or substantially all of the assets or voting control of
the Capital Stock of American Radio Systems (whether by merger or other business
combination), any event that results in ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ceasing to have one of
the following: (i) ownership of a material amount of the voting Capital Stock of
the Borrower, (ii) ownership of a material amount of the economic ownership
interests of the Borrower or (iii) the position of Chairman of the Board of
Directors and Chief Executive Officer.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean any property of any kind constituting
collateral for the Obligations under any of the Security Documents.
"Commitment" shall mean the several obligations of the Banks to fund
their respective portion of the Loans to the Borrower in accordance with their
respective Commitment Ratios in the aggregate sum of up to $400,000,000,
pursuant to the terms hereof, as such obligations may be reduced from time to
time pursuant to the terms hereof.
"Commitment Increase" shall mean the pro rata increase to each Bank's
portion of the Existing Commitment from $250,000,000 to $400,000,000.
"Commitment Ratios" shall mean the percentages in which the Banks are
severally bound to fund their respective portion of Advances to the Borrower
under the Commitment, which are set forth below (together with dollar amounts)
(and which may change from time to time in accordance with Section 11.5 hereof):
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Approximate
Bank Percentage Dollar Commitment
Toronto Dominion (Texas), Inc. 8.750000000% $ 35,000,000
Banque Paribas 6.750000000% $ 27,000,000
Barclays Bank PLC 6.▇▇▇▇▇▇▇▇▇% $ 27,000,000
Bank of Montreal, Chicago Branch 6.▇▇▇▇▇▇▇▇▇% $ 27,000,000
The Chase Manhattan Bank 6.750000000% $ 27,000,000
Fleet National Bank 6.750000000% $ 27,000,000
GE Capital Corporation 6.750000000% $ 27,000,000
The Bank of New York 6.750000000% $ 27,000,000
Credit Suisse First Boston 6.750000000% $ 27,000,000
SunTrust Bank, Central Florida, National Association 6.750000000% $ 27,000,000
Union Bank of California, N.A. 6.750000000% $ 27,000,000
Credit Lyonnais New York Branch 6.250000000% $ 25,000,000
▇▇▇▇▇▇ Commercial Paper Inc. 6.250000000% $ 25,000,000
The Bank of Nova Scotia 3.▇▇▇▇▇▇▇▇▇% $ 15,000,000
The Sumitomo Bank, Limited 3.750000000% $ 15,000,000
Bank of Scotland 3.750000000% $ 15,000,000
TOTAL 100.00% $ 400,000,000
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1 hereof, regardless of whether there shall have occurred
any passage of time or giving of notice, or both, that would be necessary in
order to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the Base Rate, plus (b) the Applicable Margin for Base Rate Advances
plus (c) two percent (2%).
"Diablo" shall mean Diablo Communications, Inc., a California
corporation, and Diablo Communications of Southern California, Inc., a
California corporation.
"Employee Pension Plan" shall mean any Plan which is maintained by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees,
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judgments or injunctions issued, promulgated, approved or entered thereunder
relating to public health, safety or the pollution or protection of the
environment, including, without limitation, those relating to releases,
discharges, emissions, spills, leaching, or disposals to air, water, land or
ground water, to the withdrawal or use of ground water, to the use, handling or
disposal of polychlorinated biphenyls, asbestos or urea formaldehyde, to the
treatment, storage, disposal or management of hazardous substances (including,
without limitation, petroleum, crude oil or any fraction thereof, or other
hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous or
other controlled, prohibited, or regulated substances, including, without
limitation, any such provisions under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.),
or the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. ss.
6901 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations of
which the Borrower is a member and which is covered by a Plan.
"Eurodollar Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D), whether or not any Bank
has any such Eurocurrency Liabilities subject to such reserve requirement at
that time.
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time, or both,
has been satisfied.
"Existing Commitment" shall mean (a) prior to receipt by the
Administrative Agent of an Activation Notice and from and after October 15,
1998, if no such Activation Notice has been received by the Administrative
Agent, and after giving effect to reductions in the Existing Commitment under
Section 2.5 and Section 2.6 hereof and repayments of the Loans under Section 2.7
hereof, $250,000,000, and (b) thereafter, after giving effect to reductions in
the Existing Commitment under Section 2.5 and Section 2.6 hereof and repayments
of the Loans under Section 2.7 hereof, the Commitment.
"Excess Cash Flow" shall mean, as of the end of any fiscal year of the
Borrower based on the audited financial statements provided under Section 6.2
hereof for such fiscal year, the excess, if any, of (a) Operating Cash Flow for
such fiscal year, minus (b) the sum of the following: (i) payments made with
respect to Capital Expenditures incurred by
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the Borrower and its Restricted Subsidiaries during such fiscal year; (ii)
repayments of the Loans resulting from reductions of the Commitment (which shall
include any reductions set forth in Section 2.5(a) hereof); (iii) cash taxes
paid by the Borrower and its Restricted Subsidiaries (including any paid to
American Radio Systems pursuant to the Tax Sharing Agreement) during such fiscal
year; (iv) Interest Expense during such fiscal year; and (v) principal payments
made in respect of Indebtedness for Money Borrowed (other than with respect to
the Loans) paid by the Borrower and its Restricted Subsidiaries during such
fiscal year.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted average
of the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such day on
such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit or capital call requirements.
"Indebtedness" shall mean, with respect to any Person, and without
duplication, (a) all items, except items of shareholders' and partners' equity
or capital stock or surplus or general contingency or deferred tax reserves,
which in accordance with GAAP would be included in determining total liabilities
as shown on the liability side of a balance sheet of such Person, including,
without limitation, with respect to any secured non-recourse obligations of such
Person, the higher of the book value or fair market value of the property or
asset securing such obligation (if less than the amount of such obligation), (b)
all direct or indirect obligations of any other Person secured by any Lien to
which any property or asset owned by such Person is subject, but only to the
extent of the higher of the fair market value or the book value of the property
or asset subject to such Lien (if less than the amount of such obligation), if
the obligation secured thereby shall not have been assumed, (c) to the extent
not otherwise included, all Capitalized Lease Obligations of such Person and all
obligations
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of such Person with respect to leases constituting part of a sale and lease-back
arrangement, (d) all reimbursement obligations with respect to outstanding
letters of credit, and (e) to the extent not otherwise included, all obligations
subject to Guaranties of such Person or its Subsidiaries, and (f) all
obligations of such Person under Interest Hedge Agreements.
"Indebtedness for Money Borrowed" shall mean, with respect to any
Person, Indebtedness for money borrowed and Indebtedness represented by notes
payable and drafts accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar instruments, all
Indebtedness upon which interest charges are customarily paid (other than trade
payables arising in the ordinary course of business, but only if and so long as
such accounts are payable on customary trade terms), all Capitalized Lease
Obligations, all reimbursement obligations with respect to outstanding letters
of credit, all Indebtedness issued or assumed as full or partial payment for
property or services (other than trade payables arising in the ordinary course
of business, but only if and so long as such accounts are payable on customary
trade terms), whether or not any such notes, drafts, obligations or Indebtedness
represent Indebtedness for money borrowed, and, without duplication, Guaranties
of any of the foregoing. For purposes of this definition, interest which is
accrued but not paid on the scheduled due date for such interest shall be deemed
Indebtedness for Money Borrowed.
"Indemnitee" shall have the meaning ascribed thereto in Section 5.12
hereof.
"Interest Coverage Ratio" shall mean, for any period, the ratio of (a)
Annualized Operating Cash Flow as of (i) the calendar quarter end being tested,
or (ii) the most recently completed calendar quarter, as the case may be, to (b)
Interest Expense for (i) the four (4) calendar quarter period then ended or (ii)
the most recently completed four (4) calendar quarter period, as the case may
be, in each case calculated in accordance with GAAP.
"Interest Expense" shall mean, for any period, all cash interest
expense (including imputed interest with respect to Capitalized Lease
Obligations) with respect to any Indebtedness for Money Borrowed of the Borrower
and its Restricted Subsidiaries on a consolidated basis during such period
pursuant to the terms of such Indebtedness for Money Borrowed, together with all
fees payable in respect thereof, all as calculated in accordance with GAAP.
"Interest Hedge Agreements" shall mean the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
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"Interest Period" shall mean (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made and ending on the
last day of the calendar quarter in which such Advance is made, provided,
however, that if a Base Rate Advance is made on the last day of any calendar
quarter, it shall have an Interest Period ending on, and its Payment Date shall
be, the last day of the following calendar quarter, and (b) in connection with
any LIBOR Advance, the term of such Advance selected by the Borrower or
otherwise determined in accordance with this Agreement. Notwithstanding the
foregoing, however, (i) any applicable Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the next succeeding
Business Day unless, with respect to LIBOR Advances only, such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day, (ii) any applicable Interest Period, with
respect to LIBOR Advances only, which begins on a day for which there is no
numerically corresponding day in the calendar month during which such Interest
Period is to end shall (subject to clause (i) above) end on the last day of such
calendar month, and (iii) the Borrower shall not select an Interest Period which
extends beyond the Maturity Date or such earlier date as would interfere with
the Borrower's repayment obligations under Section 2.5, Section 2.6 or Section
2.7 hereof. Interest shall be due and payable with respect to any Advance as
provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR
Basis, as appropriate.
"known to the Borrower" or "to the knowledge of the Borrower" shall
mean known by or reasonably should have been known by the executive officers of
the Borrower (which shall include, without limitation, the chief executive
officer, the chief operating officer, if any, the chief financial officer and
the general counsel, or any vice president of the Borrower).
"Leverage Ratio" shall mean, as of any date, the ratio of (a) the Total
Debt of the Borrower and its Restricted Subsidiaries on a consolidated basis on
such date, to (b) Annualized Operating Cash Flow of the Borrower and its
Restricted Subsidiaries on a consolidated basis.
"LIBOR" shall mean, for any Interest Period, the average of the
interest rates per annum at which deposits in United States Dollars for such
Interest Period are offered to the Administrative Agent in the Eurodollar market
at approximately 11:00 a.m. (London time) two (2) Business Days before the first
day of such Interest Period, in an amount approximately equal to the principal
amount of, and for a length of time approximately equal to the Interest Period
for, the LIBOR Advance sought by the Borrower.
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"LIBOR Advance" shall mean an Advance which the Borrower requests to be
made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in accordance
with the provisions of Section 2.2 hereof, and which shall be in a principal
amount of at least $5,000,000 and in an integral multiple of $1,000,000.
"LIBOR Basis" shall mean a simple per annum interest rate (rounded
upward, if necessary, to the nearest one-hundredth (1/100th) of one percent)
equal to the sum of (a) the quotient of (i) the LIBOR divided by (ii) one minus
the Eurodollar Reserve Percentage, if any, stated as a decimal, plus (b) the
Applicable Margin. The LIBOR Basis shall apply to Interest Periods of one (1),
two (2), three (3), or six (6) months, and, once determined, shall remain
unchanged during the applicable Interest Period, except for changes to reflect
adjustments in the Eurodollar Reserve Percentage and the Applicable Margin as
adjusted pursuant to Section 2.3(f) hereof. The LIBOR Basis for any LIBOR
Advance shall be adjusted as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Licenses" shall mean any telephone, microwave, radio transmissions,
personal communications or other license, authorization, certificate of
compliance, franchise, approval or permit, whether for the construction, the
ownership or the operation of any communications tower facilities, granted or
issued by the FCC and held by the Borrower or any of its Restricted
Subsidiaries, all of which as of the Agreement Date are listed on Schedule 1
attached hereto.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not ▇▇▇▇▇▇, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Borrower's
Pledge Agreement, the Borrower's Security Agreement, the Subsidiary Security
Agreement, the Subsidiary Guaranty, the Subsidiary Pledge Agreement, the Parent
Pledge Agreement, all fee letters, all Requests for Advance, all Interest Hedge
Agreements between the Borrower, on the one hand, and the Administrative Agent
and the Banks, or any of them, on the other hand, and all other documents and
agreements executed or delivered by the Borrower or its Restricted Subsidiaries
in connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, the amounts advanced by the Banks to
the Borrower under the Commitment, not to exceed the Commitment, and evidenced
by the Notes.
"Majority Banks" shall mean (i) at any time that no Loans are
outstanding hereunder, Banks the total of whose Commitment Ratios equals or
exceeds sixty percent (60%) of the Commitment Ratios of all Banks entitled to
vote hereunder, or (ii) at any time that there are
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Loans outstanding hereunder, Banks the total of whose Loans outstanding equals
or exceeds sixty percent (60%) of the total principal amount of the Loans then
outstanding of all Banks entitled to vote hereunder.
"Materially Adverse Effect" shall mean (a) any material adverse effect
upon the business, assets, business prospects, liabilities, financial condition,
results of operations or properties of the Borrower and its Restricted
Subsidiaries on a consolidated basis, taken as a whole, or (b) a material
adverse effect upon the binding nature, validity, or enforceability of this
Agreement and the Notes, or upon the ability of the Borrower and its Restricted
Subsidiaries to perform the payment obligations or other material obligations
under this Agreement or any other Loan Document, or upon the value of the
Collateral or upon the rights, benefits or interests of the Banks in and to the
Loans or the rights of the Administrative Agent and the Banks in the Collateral;
in either case, whether resulting from any single act, omission, situation,
status, event or undertaking, or taken together with other such acts, omissions,
situations, statuses, events or undertakings.
"Maturity Date" shall mean June 30, 2005, or, as the case may be, such
earlier date as payment of the Obligations shall be due (whether by
acceleration, reduction of the Commitment to zero or otherwise).
"MicroNet" shall mean Suburban Cable TV Co., Inc., a Pennsylvania
corporation.
"Multiemployer Plan" shall mean a multiemployer pension plan as defined
in Section 3(37) of ERISA to which the Borrower, any of its Subsidiaries or any
ERISA Affiliate is or has been required to contribute.
"Necessary Authorizations" shall mean all approvals and licenses from,
and all filings and registrations with, any governmental or other regulatory
authority, including, without limiting the foregoing, the Licenses and all
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrower and its Restricted Subsidiaries to
own, construct, maintain, and operate communications tower facilities and to
invest in other Persons who own, construct, maintain, manage and operate
communications tower facilities.
"Net Income" shall mean, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Net Proceeds" shall mean, with respect to any sale, lease, transfer or
other disposition of assets by the Borrower or any of its Restricted
Subsidiaries, the aggregate amount of cash received for such assets (including,
without limitation, any payments received for noncompetition covenants,
consulting or management fees in connection with such sale, and any portion of
the amount received evidenced by a promissory note or other
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evidence of Indebtedness issued by the purchaser), net of (i) amounts reserved,
if any, for taxes payable with respect to any such sale (after application
(assuming application first to such reserves) of any available losses, credits
or other offsets), (ii) reasonable and customary transaction costs properly
attributable to such transaction and payable by the Borrower or any of its
Restricted Subsidiaries (other than to an Affiliate) in connection with such
sale, lease, transfer or other disposition of assets, including, without
limitation, commissions, and (iii) until actually received by the Borrower or
any of its Restricted Subsidiaries, any portion of the amount received held in
escrow or evidenced by a promissory note or other evidence of Indebtedness
issued by a purchaser or non-compete, consulting or management agreement or
covenant or otherwise for which compensation is paid over time. Upon receipt by
the Borrower or any of its Restricted Subsidiaries of (A) amounts referred to in
item (iii) of the preceding sentence, or (B) if there shall occur any reduction
in the tax reserves referred to in item (i) of the preceding sentence resulting
in a payment to the Borrower, such amounts shall then be deemed to be "Net
Proceeds."
"Notes" shall mean, collectively, those certain promissory notes in the
aggregate original principal amount of $400,000,000, and issued to each of the
Banks by the Borrower, each one substantially in the form of Exhibit E attached
hereto, any other promissory note issued by the Borrower to evidence the Loans
pursuant to this Agreement, and any extensions, renewals, or amendments to, or
replacements of, the foregoing.
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Borrower, its Restricted Subsidiaries,
and any other obligors to the Banks, or the Administrative Agent, or any of
them, under this Agreement and the other Loan Documents (including any interest,
fees and other charges on the Loans or otherwise under the Loan Documents that
would accrue but for the filing of a bankruptcy action with respect to the
Borrower, whether or not such claim is allowed in such bankruptcy action and
including Obligations to the Banks pursuant to Section 5.13 hereof) as they may
be amended from time to time, or as a result of making the Loans, whether such
obligations are direct or indirect, absolute or contingent, due or not due,
contractual or tortious, liquidated or unliquidated, arising by operation of law
or otherwise, now existing or hereafter arising.
"Operating Cash Flow" shall mean, with respect to the Borrower and its
Restricted Subsidiaries on a consolidated basis as of the end of any period, (a)
the sum of (i) operating revenues of the Borrower and its Restricted
Subsidiaries plus (ii) Unrestricted Subsidiary Distributions during such period
less (b) the sum of (i) operating expenses for such period plus (ii) corporate
overhead (exclusive of amortization and depreciation) for such period. In the
case of determining Operating Cash Flow under Sections 2.3, 7.8, 7.9 and 7.10
hereof following an Acquisition permitted hereunder, Operating Cash Flow of the
Borrower and its Restricted Subsidiaries shall include the Acquisition Operating
Cash Flow. For purposes of calculating Operating Cash Flow in connection with
any Advance for an Acquisition, Operating Cash Flow for the Borrower and its
Restricted Subsidiaries as of the last day of the
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immediately preceding calendar quarter and/or calendar month end, as the case
may be, shall include "operating cash flow" for the Acquisition for the same
period after giving effect to pro forma adjustments reasonably satisfactory to
the Administrative Agent.
"Operating Cash Flow (Towers)" shall mean, with respect to the Borrower
and its Restricted Subsidiaries on a consolidated basis as of the end of any
period, (a) the sum of (i) operating revenues of the Borrower and its Restricted
Subsidiaries in connection with the Tower Operation Business of the Borrower and
its Restricted Subsidiaries plus (ii) Unrestricted Subsidiary Distributions with
respect to the Tower Operation Business during such period less (b) the sum of
(i) operating expenses attributable to such Tower Operation Business for such
period plus (ii) corporate overhead (exclusive of amortization and depreciation)
attributable to such Tower Operation Business for such period. In the case of
determining Operating Cash Flow under Sections 2.3, 7.8, 7.9 and 7.10 hereof
following an Acquisition permitted hereunder, Operating Cash Flow of the
Borrower and its Restricted Subsidiaries shall include the Acquisition Operating
Cash Flow. For purposes of calculating Operating Cash Flow in connection with
any Advance for an Acquisition, Operating Cash Flow for the Borrower and its
Restricted Subsidiaries as of the last day of the immediately preceding calendar
month end shall include "operating cash flow" for the Acquisition for the same
period after giving effect to adjustments reasonably satisfactory to the
Administrative Agent.
"Operating Cash Flow (Other Business)" shall mean, with respect to the
Borrower and its Restricted Subsidiaries on a consolidated basis as of the end
of any period, (a) the sum of (i) operating revenues of the Borrower and its
Restricted Subsidiaries in connection with the Other Operations of the Borrower
and its Restricted Subsidiaries plus (ii) Unrestricted Subsidiary Distributions
with respect to the Other Operations during such period less (b) the sum of (i)
operating expenses attributable to such Other Operations for such period plus
(ii) corporate overhead (exclusive of amortization and depreciation)
attributable to such Other Operations for such period. In the case of
determining Operating Cash Flow under Sections 2.3, 7.8, 7.9 and 7.10 hereof
following an Acquisition permitted hereunder, Operating Cash Flow of the
Borrower and its Restricted Subsidiaries shall include the Acquisition Operating
Cash Flow. For purposes of calculating Operating Cash Flow in connection with
any Advance for an Acquisition, Operating Cash Flow for the Borrower and its
Restricted Subsidiaries as of the last day of the immediately preceding calendar
month end shall include "operating cash flow" for the Acquisition for the same
period after giving effect to adjustments reasonably satisfactory to the
Administrative Agent.
"Other Operations" shall mean all businesses of the Borrower (other
than the Tower Operations Business), including, without limitation, the video
and data transmission and the site acquisition business.
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"Parent" shall mean American Tower Systems Holding Corporation, a
Delaware corporation.
"Parent Pledge Agreement" shall mean that certain Amended and Restated
Parent Pledge Agreement dated as of even date herewith, made by Parent in favor
of the Administrative Agent for the ratable benefit of the Banks, substantially
in the form of Exhibit F attached hereto.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean, as applied to any Person:
(a) any Lien in favor of the Administrative Agent given to
secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments, judgments, governmental charges or levies or claims the
non-payment of which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside on such Person's
books, but only so long as no foreclosure, distraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, vendors,
(solely to the extent arising by operation of law) laborers and materialmen
incurred in the ordinary course of business for sums not yet due or being
diligently contested in good faith, if reserves or appropriate provisions shall
have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance, social
security obligations, assessments or government charges which are not overdue
for more than sixty (60) days;
(e) restrictions on the transfer of the Licenses or assets of
the Borrower or its Restricted Subsidiaries imposed by any of the Licenses as
presently in effect or by the Communications Act and any regulations thereunder;
(f) easements, rights-of-way, zoning restrictions, licenses,
reservations or restrictions on use and other similar encumbrances on the use of
real property which do not materially interfere with the ordinary conduct of the
business of such Person or the use of such property;
-16-
(g) liens arising by operation of law in favor of purchasers
in connection with any asset sale permitted hereunder; provided that such lien
only encumbers the property being sold.
(h) Liens reflected by Uniform Commercial Code financing
statements filed in respect of Capitalized Lease Obligations permitted pursuant
to Section 7.1 hereof and true leases of the Borrower or any of its
Subsidiaries;
(i) Liens to secure performance of statutory obligations,
surety or appeal bonds, performance bonds, bids, tenders or escrow deposits in
connection with permitted Acquisitions;
(j) judgment Liens which do not result in an Event of Default
under Section 8.1 (h) hereof;
(k) Liens in connection with escrow deposits made in
connection with Acquisitions permitted hereunder; and
(l) additional Liens securing Indebtedness which does not in
the aggregate outstanding at any time exceed $500,000.
"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other employee benefit plan maintained for
employees of any Person or any affiliate of such Person.
"Pro Forma Debt Service" shall mean with respect to the Borrower and
its Restricted Subsidiaries, on a consolidated basis, with respect to the next
succeeding complete twelve (12) month period following the calculation date, and
after giving effect to any Interest Hedge Agreements and LIBOR Advances, the sum
of the amount of all (i) scheduled payments of principal on Indebtedness for
Money Borrowed (determined with respect to the Loans only, as the difference
between the outstanding principal amount of the Loans on the calculation date
and the amount the Commitment will be after the reductions thereof set forth in
Section 2.5 hereof for such four calendar quarter period have taken effect) for
such period, (ii) Interest Expense for such period, (iii) fees payable under
this Agreement for such period, and (iv) other payments payable by such Persons
during such period in respect of Indebtedness for Money Borrowed (other than
voluntary repayments under Section 2.7 hereof. For purposes of this definition,
where interest payments for the twelve (12) month
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period immediately succeeding the calculation date are not fixed by way of
Interest Hedge Agreements, LIBOR Advances, or otherwise for the entire period,
interest shall be calculated on such Indebtedness for Money Borrowed for periods
for which interest payments are not so fixed at the lesser of (a) the LIBOR
Basis (based on the then current adjustment under Section 2.3(f) hereof) for a
LIBOR Advance having an Interest Period of six (6) months as determined on the
date of calculation and (b) the Base Rate Basis as in effect on the date of
calculation; provided, however, that if such LIBOR Basis cannot be determined in
the reasonable opinion of the Administrative Agent, such interest shall be
calculated using the Base Rate Basis as then in effect.
"Reportable Event" shall mean, with respect to any Employee Pension
Plan, an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a "Request
for Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance hereunder, which shall be in substantially the form of Exhibit G
attached hereto, and shall, among other things, (i) specify the date of the
Advance, which shall be a Business Day, the amount of the Advance, the type of
Advance (Eurodollar or Base Rate), and, with respect to LIBOR Advances, the
Interest Period selected by the Borrower, (ii) state that there shall not exist,
on the date of the requested Advance and after giving effect thereto, a Default,
as of the date of such Advance and after giving effect thereto, and (iii) the
Applicable Margin then in effect.
"Restricted Payment" shall mean any direct or indirect distribution,
dividend or other payment to any Person (other than to the Borrower or any
Restricted Subsidiary of the Borrower) on account of any general or limited
partnership interest in, or shares of Capital Stock or other securities of, the
Borrower or any of its Restricted Subsidiaries (other than dividends payable
solely in stock of such Person and stock splits), including, without limitation,
any direct or indirect distribution, dividend or other payment to any Person
(other than to the Borrower or any Restricted Subsidiary of the Borrower) on
account of any warrants or other rights or options to acquire shares of Capital
Stock of the Borrower or any of its Restricted Subsidiaries.
"Restricted Subsidiary" shall mean any Subsidiary of the Borrower other
than an Unrestricted Subsidiary.
"Security Documents" shall mean the Borrower's Pledge Agreement, the
Subsidiary Guaranty, the Subsidiary Pledge Agreement, the Borrower's Security
Agreement, the Subsidiary Security Agreement, the Parent Pledge Agreement, any
other agreement or instrument providing collateral for the Obligations whether
now or hereafter in existence, and any filings, instruments, agreements, and
documents related thereto or to this Agreement,
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and providing the Administrative Agent, for the benefit of the Banks, with
Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the Administrative
Agent, for the benefit of the Banks, created hereunder or under any of the
Security Documents to secure the Obligations.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership of which more than fifty percent (50%) of the outstanding
partnership interests, is at the time owned directly or indirectly by such
Person, or by one or more Subsidiaries of such Person, or by such Person and one
or more Subsidiaries of such Person, or (b) any other entity which is directly
or indirectly controlled or capable of being controlled by such Person, or by
one or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person.
"Subsidiary Guaranty" shall mean that certain Subsidiary Guaranty dated
as of even date herewith, in favor of the Administrative Agent and the Banks,
given by each Restricted Subsidiary of the Borrower, substantially in the form
of Exhibit H hereof, and shall include any similar agreements executed pursuant
to Section 5.14 hereof.
"Subsidiary Pledge Agreement" shall mean that certain Subsidiary Pledge
Agreement dated as of even date herewith made by each Restricted Subsidiary of
the Borrower having one or more of its own Subsidiaries, on the one hand, in
favor of the Administrative Agent, on the other hand, substantially in the form
of Exhibit I hereof, and shall include any similar agreements executed pursuant
to Section 5.14 hereof.
"Subsidiary Security Agreement" shall mean that certain Subsidiary
Security Agreement dated as of even date herewith between each of the Borrower's
Restricted Subsidiaries, on the one hand, and the Administrative Agent, (on
behalf of itself and the Banks), on the other hand, substantially in the form of
Exhibit J hereof, and shall include any similar agreements executed pursuant to
Section 5.14 hereof.
"Tax Sharing Agreement" shall mean that certain Tax Sharing Agreement,
dated as of October 15, 1996, among Borrower, American Radio Systems and certain
other Subsidiaries of American Radio Systems.
"Total Debt" shall mean, for the Borrower and its Restricted
Subsidiaries on a consolidated basis as of any date, the sum (without
duplication) of (i) the outstanding
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principal amount of the Loans, (ii) the aggregate amount of Capitalized Lease
Obligations and Indebtedness for Money Borrowed, and (iii) the aggregate amount
of all Guarantees.
"Tower Operation Business" shall mean the ownership, leasing and tower
management businesses of the Borrower and its Restricted Subsidiaries.
"Unavailable Commitment" shall mean $150,000,000 of the Commitment.
"Unrestricted Subsidiary" shall mean any Subsidiary of the Borrower or
any joint venture (which may represent a minority interest) between the Borrower
and/or any Subsidiary of the Borrower and any other Person, in each case, which
the Borrower has heretofore designated or hereafter designates as an
Unrestricted Subsidiary by written notice to the Administrative Agent and the
Banks prior to the formation or acquisition of such Subsidiary or joint venture.
Notwithstanding the foregoing, no Restricted Subsidiary may be re-designated as
an Unrestricted Subsidiary without the prior consent of the Majority Banks. The
Unrestricted Subsidiaries as of the Agreement Date are as set forth on Schedule
2 attached hereto.
"Unrestricted Subsidiary Distributions" shall mean the amount of cash
distributions received during such period by the Borrower and its Restricted
Subsidiaries from any Unrestricted Subsidiary (other than in connection with the
repayment of intercompany Indebtedness).
"Use of Proceeds Letter" shall mean that certain Use of Proceeds
Letter, substantially in the form of Exhibit K attached hereto, to be delivered
to the Administrative Agent and the Banks on the date of any Advance hereunder.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended or supplemented from time to time in accordance
herewith.
ARTICLE 2 Loans
Section 2.1 The Loans. The Banks agree, severally, in accordance with
their respective Commitment Ratios and not jointly, upon the terms and subject
to the conditions of this Agreement and provided there exists no Default or
Event of Default hereunder, to lend to the Borrower, prior to the Maturity Date,
an amount not at any one time outstanding to exceed, in the aggregate, the
Available Commitment. Subject to the terms and conditions hereof and provided
there exists no Default or Event of Default hereunder, Advances hereunder may be
repaid and reborrowed from time to time on a revolving basis.
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Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance hereunder
shall, at the option of the Borrower, be made as a Base Rate Advance or a LIBOR
Advance; provided, however, that at such time as there shall have occurred and
be continuing a Default hereunder, the Borrower shall not have the right to
receive a LIBOR Advance. Any notice given to the Administrative Agent in
connection with a requested Advance hereunder shall be given to the
Administrative Agent prior to 11:00 a.m. (New York time) in order for such
Business Day to count toward the minimum number of Business Days required.
(b) Base Rate Advances.
(i) Advances. The Borrower shall give the
Administrative Agent in the case of Base Rate Advances at least one (1)
Business Day's irrevocable prior telephonic notice followed immediately
by a Request for Advance; provided, however, that the Borrower's
failure to confirm any telephonic notice with a Request for Advance
shall not invalidate any notice so given if acted upon by the
Administrative Agent. Upon receipt of such notice from the Borrower,
the Administrative Agent shall promptly notify each Bank by telephone
or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. The Borrower may
repay or prepay a Base Rate Advance without regard to its Payment Date
and (A) upon at least one (1) Business Day's irrevocable prior
telephonic notice followed by written notice, reborrow all or a portion
of the principal amount thereof as a Base Rate Advance, (B) upon at
least three (3) Business Days' irrevocable prior telephonic notice
followed by written notice, reborrow all or a portion of the principal
thereof as one or more LIBOR Advances, or (C) not reborrow all or any
portion of such Base Rate Advance. On the date indicated by the
Borrower, such Base Rate Advance shall be so repaid and, as applicable,
reborrowed. The failure to give timely notice hereunder with respect to
the Payment Date of any Base Rate Advance shall be considered a request
for a Base Rate Advance.
(c) LIBOR Advances.
(i) Advances. Upon request, the Administrative
Agent, whose determination in absence of manifest error shall be
conclusive, shall determine the available LIBOR Bases and shall notify
the Borrower of such LIBOR Bases to apply for the applicable LIBOR
advance. The Borrower shall give the Administrative Agent in the case
of LIBOR Advances at least three (3) Business Days' irrevocable prior
telephonic notice followed immediately by a Request for Advance;
provided, however, that the Borrower's failure to confirm any
telephonic notice with a Request
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for Advance shall not invalidate any notice so given if acted upon by
the Administrative Agent. Upon receipt of such notice from the
Borrower, the Administrative Agent shall promptly notify each Bank by
telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. At least three (3)
Business Days prior to the Payment Date for each LIBOR Advance, the
Borrower shall give the Administrative Agent telephonic notice followed
by written notice specifying whether all or a portion of such LIBOR
Advance (A) is to be repaid and then reborrowed in whole or in part as
one or more LIBOR Advances, (B) is to be repaid and then reborrowed in
whole or in part as a Base Rate Advance, or (C) is to be repaid and not
reborrowed. The failure to give such notice shall preclude the Borrower
from reborrowing such Advance as a LIBOR Advance on its Payment Date
and shall be considered a request for a Base Rate Advance. Upon such
Payment Date such LIBOR Advance will, subject to the provisions hereof,
be so repaid and, as applicable, reborrowed.
(d) Notification of Banks. Upon receipt of a Request for
Advance, or a notice from the Borrower with respect to any outstanding Advance
prior to the Payment Date for such Advance, the Administrative Agent shall
promptly but no later than the close of business on the day of such notice
notify each Bank by telephone or telecopy of the contents thereof and the amount
of such Bank's portion of the Advance. Each Bank shall, not later than 12:00
noon (New York time) on the date of borrowing specified in such notice, make
available to the Administrative Agent at the Administrative Agent's Office, or
at such account as the Administrative Agent shall designate, the amount of its
portion of any Advance which represents an additional borrowing hereunder in
immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York time) on the date
of an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse
the amounts made available to the Administrative Agent by the Banks in
like funds by (A) transferring the amounts so made available by wire
transfer pursuant to the Borrower's instructions, or (B) in the absence
of such instructions, crediting the amounts so made available to the
account of the Borrower maintained with the Administrative Agent.
(ii) Unless the Administrative Agent shall have
received notice from a Bank prior to 12:00 noon (New York time) on the
date of any Advance that such Bank will not make available to the
Administrative Agent such Bank's ratable portion of such Advance, the
Administrative Agent may assume that such Bank has
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made or will make such portion available to the Administrative Agent on
the date of such Advance and the Administrative Agent may in its sole
discretion and in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent the
Bank does not make such ratable portion available to the Administrative
Agent, such Bank agrees to repay to the Administrative Agent on demand
such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the
date such amount is repaid to the Administrative Agent, at the Federal
Funds Rate.
(iii) If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute
such Bank's portion of the applicable Advance for purposes of this
Agreement. If such Bank does not repay such corresponding amount
immediately upon the Administrative Agent's demand therefor, the
Administrative Agent shall notify the Borrower and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent,
with interest at the Federal Funds Rate. The failure of any Bank to
fund its portion of any Advance shall not relieve any other Bank of its
obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Bank shall be responsible
for any such failure of any other Bank.
(iv) In the event that, at any time when the
Borrower is not in Default and has otherwise satisfied each of the
conditions in Section 3.2 hereof, a Bank for any reason fails or
refuses to fund its portion of an Advance and such failure shall
continue for a period in excess of thirty (30) days, then, until such
time as such Bank has funded its portion of such Advance (which late
funding shall not absolve such Bank from any liability it may have to
the Borrower), or all other Banks have received payment in full from
the Borrower (whether by repayment or prepayment) or otherwise of the
principal and interest due in respect of such Advance, such non-funding
Bank shall not have the right (A) to vote regarding any issue on which
voting is required or advisable under this Agreement or any other Loan
Document, and such Bank's portion of the Loans shall not be counted as
outstanding for purposes of determining "Majority Banks" hereunder, and
(B) to receive payments of principal, interest or fees from the
Borrower, the Administrative Agent or the other Banks in respect of its
portion of the Loans.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate
Advance shall be computed on the basis of a year of 365/366 days for the actual
number of days elapsed and shall be payable at the Base Rate Basis for such
Advance, in arrears on the applicable Payment Date. Interest on Base Rate
Advances then outstanding shall also be due and payable on the Maturity Date.
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(b) On LIBOR Advances. Interest on each LIBOR Advance shall
be computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such LIBOR Advance shall also be
due and payable in arrears on every three-month anniversary of the beginning of
such Interest Period. Interest on LIBOR Advances then outstanding shall also be
due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate
Basis. If the Borrower fails to give the Administrative Agent timely notice of
its selection of a LIBOR Basis, or if for any reason a determination of a LIBOR
Basis for any Advance is not timely concluded, the Base Rate Basis shall apply
to such Advance.
(d) Interest Upon Default. Immediately upon the occurrence
of an Event of Default hereunder, the outstanding principal balance of the Loans
shall bear interest at the Default Rate. Such interest shall be payable on
demand by the Majority Banks and shall accrue until the earlier of (i) waiver or
cure of the applicable Event of Default, (ii) agreement by the Majority Banks
(or, if applicable to the underlying Event of Default, the Banks) to rescind the
charging of interest at the Default Rate, or (iii) payment in full of the
Obligations.
(e) LIBOR Contracts. At no time may the number of
outstanding LIBOR Advances exceed six (6).
(f) Applicable Margin. With respect to any Advance, the
Applicable Margin shall be as set forth in a certificate of the chief financial
officer of the Borrower delivered to the Administrative Agent based upon the
Applicable Margin Ratio for the most recent fiscal quarter end for which
financial statements are furnished by the Borrower to the Administrative Agent
and each Bank for the fiscal quarter most recently ended as follows:
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Base Rate Advance Applicable LIBOR Advance
Applicable Margin Ratio Margin Applicable Margin
A. Greater than or equal to 5.50:1 1.000% 2.250%
B. Greater than or equal to 5.00:1, but less than 5.50: 1 0.875% 2.125%
C. Greater than or equal to 4.50:1, but less than 5.00:1 0.625% 1.875%
D. Greater than or equal to 4.00:1, but less than 4.50:1 0.375% 1.625%
E. Greater than 3.50: 1, but less than 4.00:1 0.000% 1.250%
F. Less than 3.50:1 0.000% 1.000%
Changes to the Applicable Margin shall be effective (i) with respect to an
increase in the Applicable Margin, as of the second (2nd) Business Day after the
day on which the financial statements are required to be delivered to the
Administrative Agent and the Banks pursuant to Section 6.1 or Section 6.2
hereof, as the case may be; provided, however, if such financial statements are
not delivered to the Administrative Agent and the Banks on or before the date
specified in such Section, such increase shall be effective as of the date
specified in such Section for delivery of the financial statements, and (ii)
with respect to a decrease in the Applicable Margin, as of the later of (A) the
second (2nd) Business Day after the day on which such financial statements are
required to be delivered pursuant to Section 6.1 or Section 6.2 hereof, as the
case may be, and (B) the date on which such financial statements are actually
delivered to the Administrative Agent and the Banks. The Applicable Margin on
the Agreement Date shall be based on the Borrower's financial statements with
respect to June 30, 1997 and the Total Debt as of the Agreement Date.
Upon the occurrence and during the continuance of an Event of Default,
the Applicable Margins shall not be subject to downward adjustment and shall
automatically revert to the Applicable Margins set forth in part A of the above
table until such time as such Event of Default is cured or waived.
Section 2.4 Commitment Fees.
(a) Unavailable Commitment. Commencing on the Agreement
Date, and continuing until the earlier to occur of (i) the date of the effective
date of the Commitment Increase (if any) and (ii) the first anniversary of the
Agreement Date, the Borrower agrees to pay to the Administrative Agent for the
account of each of the Banks, in accordance with such Bank's respective
Commitment Ratio, a commitment fee on the amount of the
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Unavailable Commitment at a rate of one-eighth of one percent (0.125%) per
annum, which fee shall be computed on the basis of a year of 365/366 days for
the actual number of days elapsed, shall be payable quarterly in arrears on the
last Business Day of each calendar quarter and on the earliest to occur of the
above dates, and shall be fully earned when due and non-refundable when paid.
(b) Available Commitment. Commencing on the Agreement Date
and of all times thereafter, the Borrower agrees to pay to the Administrative
Agent for the account of each of the Banks in accordance with such Bank's
respective Commitment Ratio, a commitment fee on the aggregate unborrowed
balance of the Commitment (less, if applicable, the Unavailable Commitment) for
each day from the date of the Agreement Date until the Maturity Date, at a rate
of (i) one-half of one percent (0.500%) per annum when the Applicable Margin
Ratio is greater than or equal to 4.00: 1; and (ii) three-eighths of one percent
(0.375%) per annum when the Applicable Margin Ratio is less than 4.00: 1. Such
commitment fee shall be computed on the basis of a year of 365/366 days for the
actual number of days elapsed, shall be payable quarterly in arrears on the last
Business Day of each calendar quarter, and shall be fully earned when due and
non-refundable when paid. A final payment of any commitment fee then payable
shall also be due and payable on the Maturity Date.
Section 2.5 Mandatory Commitment Reductions
(a) Scheduled Reductions. Commencing on September 30, 2000
and at the end of each calendar quarter thereafter, the Existing Commitment as
of September 29, 2000 shall be automatically and permanently reduced as set
forth below (which reductions are in addition to those set forth in Sections
2.5(b), 2.5(c), 2.5(d) and 2.6 hereof):
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ of Reduction
of Existing Commitment
Dates of Existing Commitment Reduction As Of September 29, 2000
-------------------------------------- ---------------------------------
September 30, 2000 and December 31, 2000 3.750%
March 3 1, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 3.125%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 3.750%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 5.000%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 5.625%
March 31, 2005 7.500%
The Borrower shall make a repayment of the Loans outstanding, together with
accrued interest thereon, on or before the effective date of each reduction in
the Existing Commitment under this Section 2.5(a), such that the aggregate
principal amount of the Loans outstanding at no time exceeds the Existing
Commitment as so reduced. Any remaining unpaid principal and interest under the
Existing Commitment shall be due and payable in full on the Maturity Date, and
the Existing Commitment shall thereupon terminate.
(b) Reduction From Excess Cash Flow. On April 15, 2001, and
on each April 15 thereafter during the term of this Agreement, the Existing
Commitment shall be permanently reduced by an amount equal to fifty percent
(50%) of Excess Cash Flow for the fiscal year immediately preceding the
calculation date. Reductions to the Existing Commitment under this Section shall
be applied to the reductions set forth in Section 2.5(a) hereof in inverse order
of the reductions set forth therein.
(c) Reduction From Permitted Asset Sales. On the Business
Day following the date of receipt by the Borrower or any of its Restricted
Subsidiaries of the Net Proceeds of any asset sale permitted pursuant to Section
7.4 hereof, the Existing Commitment shall be automatically and permanently
reduced by an amount equal to such Net Proceeds; provided, however, that the
Existing Commitment shall not be required to be reduced by such Net Proceeds
until the amount of such unapplied Net Proceeds exceeds $1,000,000 in the
aggregate during the term hereof; provided, further, however, that the Borrower
may notify the Administrative Agent in writing that it intends to use any or all
of
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such Net Proceeds to acquire fixed or capital assets permitted by Section 7.6
hereof within six (6) months of the date of receipt of such Net Proceeds, in
which case, the reduction in the Existing Commitment up to the amount of the Net
Proceeds intended to be used which is otherwise required by this Section 2.5(c)
need not be made, but if all or part of such Net Proceeds are not used or
irrevocably committed to be used within such six (6)-month period, the Existing
Commitment shall be permanently reduced by an amount equal to such Net Proceeds
on the earlier of (i) the first day following the end of such six (6)-month
period and (ii) the date on which the Borrower has reasonably determined that
such Net Proceeds shall not be so used. Reductions to the Existing Commitment
under this Section shall be applied to the reductions set forth in Section
2.5(a) hereof in inverse order of the reductions set forth therein.
(d) Reduction From Sale of Capital Stock and Debt
Instruments. On the Business Day following the date of receipt by the Borrower
of the net proceeds of any sale its Capital Stock or debt instruments or other
securities (other than an amount not to exceed $2,000,000 in the aggregate from
the sale of securities in connection with any employee stock option plan of the
Borrower), the Existing Commitment shall automatically and permanently be
reduced by an amount equal (i) 100% of such net proceeds to the extent the
Leverage Ratio is greater than or equal to 4.0: 1; or (ii) 50% of such net
proceeds to the extent the Leverage Ratio is less than 4.0: 1; provided,
however, the provisions of this Section 2.5(d) shall not apply to equity
contributions by the Parent or American Radio Systems which are made with the
proceeds to Indebtedness for Money Borrowed issued in accordance with Section
8.1(p) hereof and which do not exceed $50,000,000 in the aggregate. Reductions
to the Existing Commitment under this Section shall be applied to the reductions
set forth in Section 2.5(a) hereof in inverse order of the reductions set forth
therein.
Section 2.6 Voluntary Commitment Reductions. The Borrower shall have
the right, at any time and from time to time after the Agreement Date and prior
to the Maturity Date, upon at least three (3) Business Days' prior written
notice to the Administrative Agent, without premium or penalty, to cancel or
reduce permanently all or a portion of the Existing Commitment, on a pro rata
basis among the Banks, provided, however, that any such partial reduction shall
be made in an amount not less than $5,000,000 and in integral multiples of not
less than $1,000,000. As of the date of cancellation or reduction set forth in
such notice, the Existing Commitment shall be permanently reduced to the amount
stated in the Borrower's notice for all purposes herein, and the Borrower shall
pay to the Administrative Agent for the Banks the amount necessary to reduce the
principal amount of the Loans then outstanding under the Existing Commitment to
not more than the amount of the Existing Commitment as so reduced, together with
accrued interest on the amount so prepaid and commitment fees accrued through
the date of the reduction with respect to the amount reduced. Reductions in the
Existing Commitment pursuant to this Section shall be applied pro rata to the
then remaining reductions set forth in Section 2.5(a) hereof.
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Section 2.7 Prepayments and Repayments.
(a) Prepayment. The principal amount of any Base Rate
Advance may be prepaid in full or ratably in part at any time, without penalty
and without regard to the Payment Date for such Advance. LIBOR Advances may be
prepaid prior to the applicable Payment Date, upon three (3) Business Days'
prior written notice to the Administrative Agent, provided that the Borrower
shall reimburse the Banks and the Administrative Agent, on demand by the
applicable Bank or the Administrative Agent, for any loss or reasonable out-of-
pocket expense incurred by any Bank or the Administrative Agent in connection
with such prepayment, as set forth in Section 2.10 hereof. Any prepayment
hereunder shall be in amounts of not less than $500,000 and in integral
multiples of $100,000.
(b) Repayments.
(i) Loans in Excess of Commitment. If, at any time,
the amount of the Loans then outstanding shall exceed the
Available Commitment, the Borrower shall, on such date and
subject to Sections 2.10 and 2.11 hereof, make a repayment of
the principal amount of the Loans in an amount equal to such
excess, together with any accrued interest and fees with
respect thereto.
(ii) From Excess Cash Flow. On April 15, 2000, and
on each April 15 thereafter during the term of this Agreement,
the Borrower shall make a repayment of the Loans then
outstanding in an amount equal to fifty percent (50%) of the
Excess Cash Flow for the fiscal year immediately preceding the
calculation date.
(iii) From Permitted Asset Sales. On the Business Day
following the date of receipt by the Borrower or any of its
Restricted Subsidiaries of the Net Proceeds of any asset sale
permitted pursuant to Section 7.4 hereof, and to the extent
that the Borrower is required to reduce the Existing
Commitment pursuant to Section 2.5(c) hereof, the Borrower
shall make a repayment of the Loans by an amount equal to the
amount of such reduction.
(iv) From Capital Stock and Debt Instruments. On the
Business Day following the receipt by the Borrower of the Net
Proceeds of any sale of its Capital Stock or debt instruments
or other securities, and to the extent that the Borrower is
required to reduce the Existing Commitment pursuant to Section
2.5(d) hereof, the Borrower shall make a repayment of the
Loans by an amount equal to the amount of such reduction.
(v) Maturity Date. In addition to the foregoing, a
final payment of all Obligations then outstanding shall be due
and payable on the Maturity Date.
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Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein and shall be evidenced by the Notes. One
Note shall be payable to the order of each Bank, in accordance with such Bank's
respective Commitment Ratio. The Notes shall be issued by the Borrower to the
Banks and shall be duly executed and delivered by one or more Authorized
Signatories.
(b) Each Bank may open and maintain on its books in the name
of the Borrower a loan account with respect to its portion of the Loans and
interest thereon. Each Bank which opens such a loan account shall debit such
loan account for the principal amount of its portion of each Advance made by it
and accrued interest thereon, and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Bank with respect to the loan account maintained by it shall be prima facie
evidence of its portion of the Loans and accrued interest thereon absent
manifest error, but the failure of any Bank to make any such notations or any
error or mistake in such notations shall not affect the Borrower's repayment
obligations with respect to such Loans.
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the Borrower
on account of the principal of or interest on the Loans, commitment fees and any
other amount owed to the Banks or the Administrative Agent or any of them under
this Agreement or the Notes shall be made not later than 1:00 p.m. (New York
time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office, for the account of
the Banks or the Administrative Agent, as the case may be, in lawful money of
the United States of America in immediately available funds. Any payment
received by the Administrative Agent after 1:00 p.m. (New York time) shall be
deemed received on the next Business Day. Receipt by the Administrative Agent of
any payment intended for any Bank or Banks hereunder prior to 1:00 p.m. (New
York time) on any Business Day shall be deemed to constitute receipt by such
Bank or Banks on such Business Day. In the case of a payment for the account of
a Bank, the Administrative Agent will promptly, but no later than the close of
business on the date such payment is deemed received, thereafter distribute the
amount so received in like funds to such Bank. If the Administrative Agent shall
not have received any payment from the Borrower as and when due, the
Administrative Agent will promptly notify the Banks accordingly. In the event
that the Administrative Agent shall fail to make distribution to any Bank as
required under this Section 2.9, the Administrative Agent agrees to pay such
Bank interest from the date such payment was due until paid at the Federal Funds
Rate.
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(b) The Borrower agrees to pay principal, interest, fees and
all other amounts due hereunder or under the Notes without set-off or
counterclaim or any deduction whatsoever.
(c) Prior to the declaration of an Event of Default under
Section 8.2 hereof, if some but less than all amounts due from the Borrower are
received by the Administrative Agent with respect to the Obligations, the
Administrative Agent shall distribute such amounts in the following order of
priority, all on a pro rata basis to the Banks: (i) to the payment on a pro rata
basis of any fees or expenses then due and payable to the Administrative Agent
or the Banks, or any of them; (ii) to the payment of interest then due and
payable on the Loans; (iii) to the payment of all other amounts not otherwise
referred to in this Section 2.9(c) then due and payable to the Administrative
Agent or the Banks, or any of them, hereunder or under the Notes or any other
Loan Document; and (iv) to the payment of principal then due and payable on the
Loans.
(d) Subject to any contrary provisions in the definition of
Interest Period, if any payment under this Agreement or any of the other Loan
Documents is specified to be made on a day which is not a Business Day, it shall
be made on the next Business Day, and such extension of time shall in such case
be included in computing interest and fees, if any, in connection with such
payment.
Section 2.10 Reimbursement.
(a) Whenever any Bank shall sustain or incur any losses or
reasonable out-of-pocket expenses in connection with (i) failure by the Borrower
to borrow any LIBOR Advance after having given notice of its intention to borrow
in accordance with Section 2.2 hereof (whether by reason of the Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3), or (ii) prepayment (or failure to prepay after giving
notice thereof) of any LIBOR Advance in whole or in part for any reason, the
Borrower agrees to pay to such Bank, upon such Bank's demand, an amount
sufficient to compensate such Bank for all such losses and out-of-pocket
expenses. Such Bank's good faith determination of the amount of such losses or
out-of-pocket expenses, as set forth in writing and accompanied by calculations
in reasonable detail demonstrating the basis for its demand, shall be
presumptively correct absent manifest error.
(b) Losses subject to reimbursement hereunder shall include,
without limiting the generality of the foregoing, lost margins, expenses
incurred by any Bank or any participant of such Bank permitted hereunder in
connection with the re-employment of funds prepaid, paid, repaid, not borrowed,
or not paid, as the case may be, and will be payable whether the Maturity Date
is changed by virtue of an amendment hereto (unless such amendment expressly
waives such payment) or as a result of acceleration of the Obligations.
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Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance from the Banks hereunder, shall
be made pro rata on the basis of the respective Commitment Ratios of the Banks.
(b) Payments. Each payment and prepayment of principal of
the Loans, and, except as provided in Section 2.2(e) and Article 10 hereof, each
payment of interest on the Loans, shall be made to the Banks pro rata on the
basis of their respective unpaid principal amounts outstanding under the Notes
immediately prior to such payment or prepayment. If any Bank shall obtain any
payment (whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans in excess of its ratable share of the Loans
under its Commitment Ratio, such Bank shall forthwith purchase from the other
Banks such participations in the portion of the Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery. The Borrower agrees that any
Bank so purchasing a participation from another Bank pursuant to this Section
2.11(b) may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Bank were the direct creditor of the Borrower in the amount of
such participation.
Section 2.12 Capital Adequacy. If after the date hereof, the adoption
of any Applicable Law regarding the capital adequacy of banks or bank holding
companies, or any change in Applicable Law (whether adopted before or after the
Agreement Date) or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank (or the
bank holding company of such Bank) with any directive regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on any Bank's capital as a consequence of its obligations
hereunder with respect to the Loans and the Commitment to a level below that
which it could have achieved but for such adoption, change or compliance (taking
into consideration such Bank's policies with respect to capital adequacy
immediately before such adoption, change or compliance and assuming that such
Bank's (or the bank holding company of such Bank) capital was fully utilized
prior to such adoption, change or compliance) by an amount reasonably deemed by
such Bank to be material, then, upon demand by such Bank, the Borrower shall
promptly pay to such Bank such additional amounts as shall be sufficient to
compensate such Bank for such reduced return, together with interest on such
amount from the fourth (4th) Business Day after the date of demand or the
Maturity Date, as applicable, until payment in full thereof at the Default Rate.
A certificate of such Bank setting forth the amount to be paid to such Bank by
the Borrower as a result of any event referred to in this
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paragraph and supporting calculations in reasonable detail shall be
presumptively correct absent manifest error.
Section 2.13 Bank Tax Forms. On or prior to the Agreement Date and on
or prior to the first Business Day of each calendar year thereafter, each Bank
which is organized in a jurisdiction other than the United States shall provide
each of the Administrative Agent and the Borrower with a properly executed
originals of Forms 4224 or 1001 (or any successor form) prescribed by the
Internal Revenue Service or other documents satisfactory to the Borrower and the
Administrative Agent, and properly executed Internal Revenue Service Forms W-8
or W-9, as the case may be, certifying (i) as to such Bank's status for purposes
of determining exemption from United States withholding taxes with respect to
all payments to be made to such Bank hereunder and under the Notes or (ii) that
all payments to be made to such Bank hereunder and under the Notes are subject
to such taxes at a rate reduced to zero by an applicable tax treaty. Each such
Bank agrees to provide the Administrative Agent and the Borrower with new forms
prescribed by the Internal Revenue Service upon the expiration or obsolescence
of any previously delivered form, or after the occurrence of any event requiring
a change in the most recent forms delivered by it to the Administrative Agent
and the Borrower.
ARTICLE 3 Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of this Amendment
and Restatement. The effectiveness of this amendment and restatement to the
Prior Loan Agreement is subject to the prior or contemporaneous fulfillment of
each of the following conditions:
(a) The Administrative Agent and the Banks shall have
received each of the following:
(i) this Agreement duly executed;
(ii) the loan certificate of the Borrower dated as
of the Agreement Date, in substantially the form attached
hereto as Exhibit L, including a certificate of incumbency
with respect to each Authorized Signatory of such Person,
together with the following items: (A) a true, complete and
correct copy of the Certificate of Incorporation and By-laws
of the Borrower as in effect on the Agreement Date, (B)
certificates of good standing for the Borrower issued by the
Secretary of State or similar state official for the state of
incorporation of the Borrower and for each state in which the
Borrower is required to qualify to do business, (C) a true,
complete and correct copy of the corporate resolutions of the
Borrower authorizing the Borrower to execute, deliver and
perform this Agreement and the other Loan Documents, and (D)
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a true, complete and correct copy of any shareholders'
agreements or voting trust agreements in effect with respect
to the stock of the Borrower;
(iii) duly executed Notes;
(iv) duly executed Security Documents;
(v) copies of insurance binders or certificates
covering the assets of the Borrower and its Restricted
Subsidiaries, and otherwise meeting the requirements of
Section 5.5 hereof, together with copies of the underlying
insurance policies;
(vi) legal opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP,
counsel to the Borrower; addressed to each Bank and the
Administrative Agent and dated as of the Agreement Date;
(vii) duly executed Certificates of Financial
Condition for the Borrower and its Restricted Subsidiaries on
a consolidated and consolidating basis, given by the chief
financial officer of the Borrower;
(viii) copies of the most recent quarterly financial
statements of the Borrower and its Restricted Subsidiaries
provided to each Bank and each Administrative Agent, certified
by the chief financial officer of the Borrower;
(ix) duly executed Master Assignment and Assumption
Agreement dated as of the Agreement Date, among the Banks and
Signet Bank, N.A. in form and substance satisfactory to the
Banks; and
(x) all such other documents as the Administrative
Agent may reasonably request, certified by an appropriate
governmental official or an Authorized Signatory if so
requested.
(b) The Administrative Agent and the Banks shall have
received evidence satisfactory to them that all Necessary Authorizations,
including all necessary consents to the closing of this Agreement, have been
obtained or made, are in full force and effect and are not subject to any
pending or, to the knowledge of the Borrower, threatened reversal or
cancellation, and the Administrative Agent and the Banks shall have received a
certificate of an Authorized Signatory so stating.
(c) The Borrower shall certify to the Administrative Agent
and the Banks that each of the representations and warranties in Article 4
hereof are true and correct in all material respects as of the Agreement Date
and that no Default or Event of Default then exists or is continuing.
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(d) The Borrower shall have paid to the Administrative Agent
for the account of each Bank the facility fees set forth in those letter
agreements dated the Agreement Date in favor of each Bank.
(e) The Administrative Agent shall have received copies of
executed asset purchase agreements for certain acquisitions from Diablo and
Micronet for an aggregate purchase price of not greater than $120,000,000 and in
form and substance satisfactory to the Banks.
(f) The Administrative Agent shall have received evidence
reasonably satisfactory to it that no real property owned by the Borrower is
located in a Federal or state designated flood zone or, to the extent that any
such real property is located in a Federal or state designated flood zone,
evidence satisfactory to it that such real property is sufficiently insured
against flood related losses.
Section 3.2 Conditions Precedent to Each Advance. The obligation of
the Banks to make each Advance on or after the Agreement Date is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) All of the representations and warranties of the
Borrower under this Agreement and the other Loan Documents (including, without
limitation, all representations and warranties with respect to the Borrower's
Restricted Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and
as of the time of such Advance, shall be true and correct at such time in all
material respects, both before and after giving effect to the application of the
proceeds of such Advance, and after giving effect to any updates to information
provided to the Banks in accordance with the terms of such representations and
warranties, and no Default hereunder shall then exist or be caused thereby;
(b) With respect to Advances which, if funded, would
increase the aggregate principal amount of Loans outstanding hereunder, the
Administrative Agent shall have received a duly executed Request for Advance;
(c) The Administrative Agent and the Banks shall have
received all such other certificates, reports, statements, opinions of counsel
(if such Advance is in connection with an Acquisition) or other documents as the
Administrative Agent or any Bank may reasonably request;
(d) With respect to any Advance relating to any Acquisition
or the formation of any Subsidiary which is permitted hereunder, the
Administrative Agent and the Banks shall have received such documents and
instruments relating to such Acquisition or
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formation of a new Restricted Subsidiary as are described in Section 5.14 hereof
or otherwise required herein.
ARTICLE 4 Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby agrees,
represents and warrants, upon the Agreement Date, in favor of the Administrative
Agent and each Bank that:
(a) Organization; Ownership; Power; Qualification. The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Borrower has the corporate power
and authority to own its properties and to carry on its business as now being
and as proposed hereafter to be conducted. Except as set forth on Schedule
4.l(a) attached hereto, each Restricted Subsidiary of the Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation and has the corporate power and authority to
own its properties and to carry on its business as now being and as proposed
hereafter to be conducted. The Borrower and each of its Restricted Subsidiaries
are duly qualified, in good standing and authorized to do business in each
jurisdiction in which the character of their respective properties or the nature
of their respective businesses requires such qualification or authorization,
except where failure to be so qualified, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary corporate action to authorize it to
borrow hereunder, to execute, deliver and perform this Agreement and each of the
other Loan Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by the Borrower and is, and each
of the other Loan Documents to which the Borrower is party is, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject, as to enforcement of remedies, to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity.
(c) Subsidiaries: Authorization; Enforceability. The
Borrower's Restricted Subsidiaries and the Borrower's direct and indirect
ownership thereof as of the Agreement Date are as set forth on Schedule 4.1(c)
attached hereto, and to the extent such Restricted Subsidiaries are
corporations, the Borrower has the unrestricted right to vote the issued and
outstanding shares of the Restricted Subsidiaries shown thereon and such shares
of such Restricted Subsidiaries have been duly authorized and issued and are
fully paid and
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nonassessable. Each Restricted Subsidiary of the Borrower has the corporate
power and has taken all necessary corporate action to authorize it to execute,
deliver and perform each of the Loan Documents to which it is a party in
accordance with their respective terms and to consummate the transactions
contemplated by this Agreement and by such Loan Documents. Each of the Loan
Documents to which any Restricted Subsidiary of the Borrower is party is a
legal, valid and binding obligation of such Restricted Subsidiary enforceable
against such Restricted Subsidiary in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity. The Borrower's ownership interest in each of its
Restricted Subsidiaries represents a direct or indirect controlling interest of
such Restricted Subsidiary for purposes of directing or causing the direction of
the management and policies of each Restricted Subsidiary.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and the Notes, and by the
Borrower and its Restricted Subsidiaries of each of the other Loan Documents to
which they are respectively party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) require any consent or
approval, governmental or otherwise, not already obtained, (ii) violate any
Applicable Law respecting the Borrower or any Restricted Subsidiary of the
Borrower, (iii) conflict with, result in a breach of, or constitute a default
under the certificate or articles of incorporation or by-laws or partnership
agreements, as the case may be, as amended, of the Borrower or of any Restricted
Subsidiary of the Borrower, or under any material indenture, agreement, or other
instrument, including without limitation the Licenses, to which the Borrower or
any of its Restricted Subsidiaries is a party or by which any of them or their
respective properties may be bound, or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Borrower or any of its Restricted Subsidiaries, except
for Permitted Liens.
(e) Business. The Borrower, together with its Subsidiaries,
is engaged in the business of owning, constructing, managing, operating, and
investing in communications tower facilities.
(f) Licenses, etc. The Licenses have been duly issued and
are in full force and effect. The Borrower and its Restricted Subsidiaries are
in compliance in all material respects with all of the provisions thereof. The
Borrower and its Restricted Subsidiaries have secured all Necessary
Authorizations and all such Necessary Authorizations are in full force and
effect. Neither any License nor any Necessary Authorization is the subject of
any pending or, to the best of the Borrower's knowledge, threatened revocation.
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(g) Compliance with Law. The Borrower and its Restricted
Subsidiaries are in compliance with all Applicable Law, except where the failure
to be in compliance would not individually or in the aggregate have a Material
Adverse Effect.
(h) Title to Assets. As of the Agreement Date, the
Borrower and its Restricted Subsidiaries have good, legal and marketable title
to, or a valid leasehold interest in, all of its assets. None of the properties
or assets of the Borrower or any of its Restricted Subsidiaries is subject to
any Liens, except for Permitted Liens. Except for financing statements
evidencing Permitted Liens, no financing statement under the Uniform Commercial
Code as in effect in any jurisdiction and no other filing which names the
Borrower or any of its Restricted Subsidiaries as debtor or which covers or
purports to cover any of the assets of the Borrower or any of its Restricted
Subsidiaries is currently effective and on file in any state or other
jurisdiction, and neither the Borrower nor any of its Restricted Subsidiaries
has signed any such financing statement or filing or any security agreement
authorizing any secured party thereunder to file any such financing statement or
filing.
(i) Litigation. As of the date hereof, there is no action,
suit, proceeding or investigation pending against, or, to the knowledge of the
Borrower, threatened against or in any other manner relating adversely to, the
Borrower or any of its Restricted Subsidiaries or any of their respective
properties, including without limitation the Licenses, in any court or before
any arbitrator of any kind or before or by any governmental body (including
without limitation the FCC) except as set forth on Schedule 4.1(i) attached
hereto (as such schedule may be updated from time to time). No such action,
suit, proceeding or investigation (i) calls into question the validity of this
Agreement or any other Loan Document, or (ii) individually or collectively
involves the possibility of any judgment or liability not fully covered by
insurance which, if determined adversely to the Borrower or any of its
Restricted Subsidiaries, would have a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the
Borrower and each of its Restricted Subsidiaries required by law to be filed
have been duly filed and all federal, state and other taxes, including, without
limitation, withholding taxes, assessments and other governmental charges or
levies required to be paid by the Borrower or any of its Restricted Subsidiaries
or imposed upon the Borrower or any of its Restricted Subsidiaries or any of
their respective properties, income, profits or assets, which are due and
payable, have been paid, except any such taxes (i) (x) the payment of which the
Borrower or any of its Restricted Subsidiaries is diligently contesting in good
faith by appropriate proceedings, (y) for which adequate reserves have been
provided on the books of the Borrower or the Restricted Subsidiary of the
Borrower involved, and (z) as to which no Lien other than a Permitted Lien has
attached and no foreclosure, distraint, sale or similar proceedings have been
commenced, or (ii) which may result from audits not yet conducted. The charges,
accruals and reserves
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on the books of the Borrower and each of its Restricted Subsidiaries in respect
of taxes are, in the judgment of the Borrower, adequate.
(k) Financial Statements. The Borrower has furnished or
caused to be furnished to the Administrative Agent and the Banks as of the
Agreement Date, the audited financial statements for American Radio Systems and
its Subsidiaries on a consolidated basis for the fiscal year ended December 31,
1996, and unaudited financial statements for the Borrower and its Restricted
Subsidiaries for the fiscal quarter ended June 30, 1997, all of which have been
prepared in accordance with GAAP and present fairly in all material respects the
financial position of the Borrower and its Restricted Subsidiaries on a
consolidated basis, on and as at such dates and the results of operations for
the periods then ended (subject, in the case of unaudited financial statements,
to normal year-end and audit adjustments). Neither the Borrower nor any of its
Restricted Subsidiaries has any material liabilities, contingent or otherwise,
other than as disclosed in the financial statements referred to in the preceding
sentence or as set forth or referred to in this Agreement.
(l) No Material Adverse Change. There has occurred no
event since December 31, 1996 which has or which could reasonably be expected to
have a Materially Adverse Effect.
(m) ERISA. The Borrower and each Subsidiary of the
Borrower and each of their respective Plans are in compliance with ERISA and the
Code and neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any accumulated funding deficiency with respect to
any such Plan within the meaning of ERISA or the Code. The Borrower, each of its
Subsidiaries, and each other ERISA Affiliate have complied in all material
respects with all requirements of ERISA. Neither the Borrower nor any of its
Subsidiaries has made any promises of retirement or other benefits to employees,
except as set forth in the Plans, in written agreements with such employees, or
in the Borrower's employee handbook and memoranda to employees. Neither the
Borrower nor any of its ERISA Affiliates, including its Subsidiaries, has
incurred any material liability to PBGC in connection with any such Plan. The
assets of each such Plan which is subject to Title IV of ERISA are sufficient to
provide the benefits under such Plan, the payment of which PBGC would guarantee
if such Plan were terminated, and such assets are also sufficient to provide all
other "benefit liabilities" (within the meaning of Section 4041 of ERISA) due
under the Plan upon termination. No Reportable Event has occurred and is
continuing with respect to any such Plan. No such Plan or trust created
thereunder, or party in interest (as defined in Section 3(14) of ERISA), or any
fiduciary (as defined in Section 3(21) of ERISA), has engaged in a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) which would subject such Plan or any other Plan of the Borrower or any
of its Subsidiaries, any trust created thereunder, or any such party in interest
or fiduciary, or any party dealing with any such Plan or any such trust, to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
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Section 4975 of the Code. Neither the Borrower nor any of its ERISA Affiliates,
including its Subsidiaries, is or has been obligated to make any payment to a
Multiemployer Plan.
(n) Compliance with Regulations G, T, U and X. Neither the
Borrower nor any of the Borrower's Restricted Subsidiaries is engaged
principally or as one of its important activities in the business of extending
credit for the purpose of purchasing or carrying, and neither the Borrower nor
any of the Borrower's Restricted Subsidiaries owns or presently intends to
acquire, any "margin security" or "margin stock" as defined in Regulations G, T,
U, and X (12 C.F.R. Parts 207, 220, 221 and 224) of the Board of Governors of
the Federal Reserve System (herein called "margin stock"). None of the proceeds
of the Loans will be used, directly or indirectly, for the purpose of purchasing
or carrying any margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin stock or
for any other purpose which might constitute this transaction a "purpose credit"
within the meaning of said Regulations G, T, U, and X. The Borrower has not
taken, caused or authorized to be taken, and will not take any action which
might cause this Agreement or the Notes to violate Regulation G, T, U, or X or
any other regulation of the Board of Governors of the Federal Reserve System or
to violate the Securities Exchange Act of 1934, in each case as now in effect or
as the same may hereafter be in effect. If so requested by the Administrative
Agent, the Borrower will furnish the Administrative Agent with (i) a statement
or statements in conformity with the requirements of Federal Reserve Forms G-3
and/or U-I referred to in Regulations G and U of said Board of Governors and
(ii) other documents evidencing its compliance with the margin regulations,
reasonably requested by the Administrative Agent. Neither the making of the
Loans nor the use of proceeds thereof will violate, or be inconsistent with, the
provisions of Regulation G, T, U, or X of said Board of Governors.
(o) Investment Company Act. Neither the Borrower nor any
of its Restricted Subsidiaries is required to register under the provisions of
the Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Borrower and its Restricted Subsidiaries of this Agreement
and the Loan Documents nor the issuance of the Notes violates any provision of
such Act or requires any consent, approval or authorization of, or registration
with, the Securities and Exchange Commission or any other governmental or public
body or authority pursuant to any provisions of such Act.
(p) Governmental Regulation. Neither the Borrower nor any
of its Restricted Subsidiaries is required to obtain any consent, approval,
authorization, permit or license which has not already been obtained from, or
effect any filing or registration which has not already been effected with, any
federal, state or local regulatory authority in connection with the execution
and delivery of this Agreement or any other Loan Document. Neither the Borrower
nor any of its Restricted Subsidiaries is required to obtain any consent,
approval, authorization, permit or license which has not already been obtained
from, or effect any filing or registration which has not already been effected
with, any federal, state or local
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regulatory authority in connection with the performance, in accordance with
their respective terms, of this Agreement or any other Loan Document, other than
filing of appropriate UCC financing statements and mortgages.
(q) Absence of Default, Etc. The Borrower and its
Restricted Subsidiaries are in compliance in all respects with all of the
provisions of their respective partnership agreements, Certificates or Articles
of Incorporation and By-Laws, as the case may be, and no event has occurred or
failed to occur (including, without limitation, any matter which could create a
Default hereunder by cross-default) which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, (i) a Default or (ii) a
material default by the Borrower or any of its Restricted Subsidiaries under any
indenture, agreement or other instrument relating to Indebtedness of the
Borrower or any of its Restricted Subsidiaries in the amount of $1,000,000 or
more in the aggregate, any material License, or any judgment, decree or order to
which the Borrower or any of its Restricted Subsidiaries is a party or by which
the Borrower or any of its Restricted Subsidiaries or any of their respective
properties may be bound or affected.
(r) Accuracy and Completeness of Information. All
information, reports, prospectuses and other papers and data relating to the
Borrower or any of its Restricted Subsidiaries and furnished by or on behalf of
the Borrower or any of its Restricted Subsidiaries to the Administrative Agent
or the Banks, taken as a whole, were, at the time furnished, true, complete and
correct in all material respects to the extent necessary to give the
Administrative Agent and the Banks true and accurate knowledge of the subject
matter, and all projections, consisting of a consolidated projected cash flow
statement, an income statement, and a balance sheet for Borrower and its
Restricted Subsidiaries (the "Projections") (i) disclose all assumptions made
with respect to costs, general economic conditions, and financial and market
conditions formulating the Projections; (ii) are based on reasonable estimates
and assumptions; and (iii) reflect, as of the date prepared, and continue to
reflect, as of the date hereof, the reasonable estimate of Borrower of the
results of operations and other information projected therein for the periods
covered thereby.
(s) Agreements with Affiliates. Except for agreements or
arrangements with Affiliates wherein the Borrower or one or more of its
Restricted Subsidiaries provides services to such Affiliates for fair
consideration or which are set forth on Schedule 4.l(s) attached hereto, neither
the Borrower nor any of its Restricted Subsidiaries has (i) any written
agreements or binding arrangements of any kind with any Affiliate or (ii) any
management or consulting agreements of any kind with any Affiliate, other than
those between the Borrower and its Restricted Subsidiaries.
(t) Payment of Wages. The Borrower and each of its
Restricted Subsidiaries are in compliance with the Fair Labor Standards Act, as
amended, in all material respects, and to the knowledge of the Borrower and each
of its Subsidiaries, such Persons
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have paid all minimum and overtime wages required by law to be paid to their
respective employees.
(u) Priority. The Security Interest is a valid and, upon
filing of appropriate UCC financing statements and/or mortgages, will be a
perfected first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Banks, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens. The Liens created
by the Security Documents are enforceable as security for the Obligations in
accordance with their terms with respect to the Collateral subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate remedy
at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Borrower or any of its
Subsidiaries, as the case may be).
(v) Indebtedness. Except as shown on the financial
statements of Borrower for the fiscal quarter ended June 30, 1997, or as
described on Schedule 4.l(v) attached hereto neither the Borrower nor any of its
Restricted Subsidiaries has outstanding, as of the Agreement Date, and after
giving effect to the initial Advances hereunder on the Agreement Date, any
Indebtedness for Money Borrowed.
(w) Solvency. As of the Agreement Date and after giving
effect to the transactions contemplated by the Loan Documents (i) the property
of the Borrower, at a fair valuation, will exceed its debt; (ii) the capital of
the Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature; and (iv) the present fair salable
value of the assets of the Borrower will be greater than the amount that will be
required to pay its probable liabilities (including debts) as they become
absolute and matured. For purposes of this Section, "debt" means any liability
on a claim, and "claim" means (i) the right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
Section 4.2 Survival of Representations and Warranties, Etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date of each
Advance except to the extent relating specifically to the Agreement Date. All
representations and warranties made under this Agreement and the
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other Loan Documents shall survive, and not be waived by, the execution hereof
by the Banks and the Administrative Agent, any investigation or inquiry by any
Bank or the Administrative Agent, or the making of any Advance under this
Agreement.
ARTICLE 5 General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority
Banks, or such greater number of Banks as may be expressly provided herein,
shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Except as
permitted under Section 7.4 hereof, the Borrower will, and will cause each of
its Restricted Subsidiaries to:
(a) preserve and maintain its existence, and its material
rights, franchises, licenses and privileges in the state of its incorporation,
including, without limiting the foregoing, the Licenses and all other Necessary
Authorizations; and
(b) qualify and remain qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification or authorization, except for
such failure to so qualify and be so authorized as could not reasonably be
expected to have a Material Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrower
will, and will cause each of its Restricted Subsidiaries to, (a) engage in the
business of owning, constructing, managing, operating and investing in
communications tower facilities and related businesses and no unrelated
activities, and (b) comply in all material respects with the requirements of all
Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will, and will
cause each of its Restricted Subsidiaries to, maintain or cause to be maintained
in the ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than obsolete equipment or
unused assets and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower
will, and will cause each of its Restricted Subsidiaries on a consolidated and
consolidating basis to, maintain a system of accounting established and
administered in accordance with GAAP,
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keep adequate records and books of account in which complete entries will be
made in accordance with GAAP and reflecting all transactions required to be
reflected by GAAP and keep accurate and complete records of their respective
properties and assets. The Borrower and its Restricted Subsidiaries will
maintain a fiscal year ending on December 31.
Section 5.5 Insurance. The Borrower will, and will cause each of its
Restricted Subsidiaries to:
(a) Maintain insurance including, but not limited to,
business interruption coverage and public liability coverage insurance from
responsible companies in such amounts and against such risks to the Borrower and
each of its Restricted Subsidiaries as is prudent for similarly situated
companies engaged in the communications tower industry.
(b) Keep their respective assets insured by insurers on
terms and in a manner reasonably acceptable to the Administrative Agent against
loss or damage by fire, theft, burglary, loss in transit, explosions and hazards
insured against by extended coverage, in amounts which are prudent for the
communications tower management and operation industry and reasonably
satisfactory to the Administrative Agent, all premiums thereon to be paid by the
Borrower and its Restricted Subsidiaries.
(c) Require that each insurance policy provide for at least
thirty (30) days' prior written notice to the Administrative Agent of any
termination of or proposed cancellation or nonrenewal of such policy, and name
the Administrative Agent as additional named lender loss payee and, as
appropriate, additional insured, to the extent of the Obligations.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and will
cause each of its Restricted Subsidiaries to, pay and discharge all taxes,
including, without limitation, withholding taxes, assessments and governmental
charges or levies required to be paid by them or imposed upon them or their
income or profits or upon any properties belonging to them, prior to the date on
which penalties attach thereto, and all lawful claims for labor, materials and
supplies which, if unpaid, might become a Lien or charge upon any of their
properties; except that no such tax, assessment, charge, levy or claim need be
paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy or
claim does not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale or similar proceedings shall have been commenced.
The Borrower will, and will cause each of its Restricted Subsidiaries to, timely
file all information returns required by federal, state or local tax
authorities.
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Section 5.7 Compliance with ERISA.
(a) The Borrower shall, and shall cause its Subsidiaries
to, make all contributions to any Employee Pension Plan when such contributions
are due and not incur any "accumulated funding deficiency" within the meaning of
Section 412(a) of the Code, whether or not waived, and will otherwise comply
with the requirements of the Code and ERISA with respect to the operation of all
Plans, except to the extent that the failure to so comply could not have a
Materially Adverse Effect.
(b) The Borrower shall, and shall cause its Subsidiaries
to, comply in all respects with the requirements of ERISA with respect to any
Plans subject to the requirements thereof, except to the extent that the failure
to so comply could not have a Materially Adverse Effect.
(c) The Borrower shall furnish to Administrative Agent (i)
within 30 days after any officer of the Borrower obtains knowledge that a
"prohibited transaction" (within the meaning of Section 406 of ERISA or Section
4975 of the Code) has occurred with respect to any Plan of the Borrower or its
ERISA Affiliates, including its Subsidiaries, that any Reportable Event has
occurred with respect to any Employee Pension Plan or that PBGC has instituted
or will institute proceedings under Title IV of ERISA to terminate any Employee
Pension Plan or to appoint a trustee to administer any Employee Pension Plan, a
statement setting forth the details as to such prohibited transaction,
Reportable Event or termination or appointment proceedings and the action which
it (or any other Employee Pension Plan sponsor if other than the Borrower)
proposes to take with respect thereto, together with a copy of the notice of
such Reportable Event given to PBGC if a copy of such notice is available to the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates, (ii) promptly
after receipt thereof, a copy of any notice the Borrower, any of its
Subsidiaries or any of its ERISA Affiliates or the sponsor of any Plan receives
from PBGC, or the Internal Revenue Service or the Department of Labor which sets
forth or proposes any action or determination with respect to such Plan, (iii)
promptly after the filing thereof, any annual report required to be filed
pursuant to ERISA in connection with each Plan maintained by the Borrower or any
of its ERISA Affiliates, including the Subsidiaries, and (iv) promptly upon the
Administrative Agent's request therefor, such additional information concerning
any such Plan as may be reasonably requested by the Administrative Agent.
(d) The Borrower will promptly notify the Administrative
Agent of any excise taxes which have been assessed or which the Borrower, any of
its Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries.
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(e) Within the time required for notice to the PBGC under
Section 302(f)(4)(A) of ERISA, the Borrower will notify the Administrative Agent
of any lien arising under Section 302(f) of ERISA in favor of any Plan of the
Borrower or its ERISA Affiliates, including its Subsidiaries.
(f) The Borrower will not, and will not permit any of its
Subsidiaries or any of its ERISA Affiliates, to take any of the following
actions or permit any of the following events to occur if such action or event
together with all other such actions or events would subject the Borrower, any
of its Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or
other liabilities which could have a Materially Adverse Effect:
(i) engage in any transaction in connection with
which the Borrower, any of its Subsidiaries or any ERISA
Affiliate could be subject to either a civil penalty
assessed pursuant to Section 502(i) of ERISA or a tax
imposed by Section 4975 of the Code;
(ii) terminate any Employee Pension Plan in a
manner, or take any other action, which could result in any
liability of the Borrower, any of its Subsidiaries or any
ERISA Affiliate to the PBGC;
(iii) fail to make full payment when due of all
amounts which, under the provisions of any Plan, the
Borrower, any of its Subsidiaries or any ERISA Affiliate is
required to pay as contributions thereto, or permit to exist
any accumulated funding deficiency within the meaning of
Section 412(a) of the Code, whether or not waived, with
respect to any Employee Pension Plan; or
(iv) permit the present value of all benefit
liabilities under all Employee Pension Plans which are
subject to Title IV of ERISA to exceed the present value of
the assets of such Plans allocable to such benefit
liabilities (within the meaning of Section 4041 of ERISA),
except as may be permitted under actuarial funding standards
adopted in accordance with Section 412 of the Code.
Section 5.8 Visits and Inspections. The Borrower will, and will
cause each of its Restricted Subsidiaries to, permit representatives of the
Administrative Agent and any of the Banks, upon reasonable notice, to (a) visit
and inspect the properties of the Borrower or any of its Restricted Subsidiaries
during business hours, (b) inspect and make extracts from and copies of their
respective books and records, and (c) discuss with their respective principal
officers their respective businesses, assets, liabilities, financial positions,
results of operations and business prospects. The Borrower and each of its
Restricted Subsidiaries will also permit representatives of the Administrative
Agent and any of the Banks to discuss with their respective accountants the
Borrower's and the Borrower's Restricted Subsidiaries' businesses, assets,
liabilities, financial positions, results of operations and business prospects.
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Section 5.9 Payment of Indebtedness; Loans. Subject to any
provisions herein or in any other Loan Document, the Borrower will, and will
cause each of its Restricted Subsidiaries to, pay any and all of their
respective Indebtedness when and as it becomes due, other than amounts
diligently disputed in good faith and for which adequate reserves have been set
aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances under the Loans directly or indirectly:
(a) to fund Acquisitions permitted by Section 7.6 hereof;
(b) to fund Capital Expenditures to the extent permitted
under Section 7.11 hereof; and
(c) for working capital needs and other corporate purposes
of the Borrower and its Restricted Subsidiaries (including, without limitation,
the fees and expenses incurred in connection with the execution and delivery of
this Agreement) which do not otherwise conflict with this Section 5.10.
No proceeds of Advances hereunder shall be used for the purchase or carrying or
the extension of credit for the purpose of purchasing or carrying, any margin
stock within the meaning of Regulations G, T, U, and X of the Board of Governors
of the Federal Reserve System.
Section 5.11 Real Estate. The Borrower shall, and shall cause its
Restricted Subsidiaries to, within ninety (90) days from the Agreement Date,
and, thereafter, within thirty (30) days of the acquisition of any real estate
permitted under Section 7.13 hereof and within thirty (30) days after the
reports produced pursuant to Section 6.6 hereof, grant a mortgage to the
Administrative Agent securing the Obligations (or such amount thereof as is
equal to the fair market value of such real estate if the Majority Banks so
permit), in form and substance reasonably satisfactory to the Administrative
Agent, covering the parcels of real estate owned by the Borrower or any of its
Restricted Subsidiaries which in the aggregate account for not less than
seventy-five percent (75%) of the revenues generated by all such parcels of real
estate based upon the reports required pursuant to Section 6.6 hereof. The
Borrower shall, and shall cause its Restricted Subsidiaries to, deliver to the
Administrative Agent all documentation, including opinions of counsel and
policies of title insurance, which in the reasonable opinion of the
Administrative Agent are appropriate with each such grant, including any phase I
environmental audit requested by the Majority Banks.
Section 5.12 Indemnity. The Borrower agrees to indemnify and hold
harmless each Bank, the Administrative Agent, and each of their respective
affiliates, employees,
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representatives, shareholders, officers and directors (any of the foregoing
shall be an "Indemnitee") from and against any and all claims, liabilities,
losses, damages, actions, reasonable attorneys' fees and expenses (as such fees
and expenses are incurred) and demands by any party, including the costs of
investigating and defending such claims, whether or not the Borrower, any
Restricted Subsidiary or the Person seeking indemnification is the prevailing
party (a) resulting from any breach or alleged breach by the Borrower or any
Restricted Subsidiary of the Borrower of any representation or warranty made
hereunder or under any Loan Document; or (b) otherwise arising out of (i) the
Commitment or otherwise under this Agreement, any Loan Document or any
transaction contemplated hereby or thereby, including, without limitation, the
use of the proceeds of Loans hereunder in any fashion by the Borrower or the
performance of their respective obligations under the Loan Documents by the
Borrower or any of its Restricted Subsidiaries, (ii) allegations of any
participation by the Banks, the Administrative Agent, or any of them, in the
affairs of the Borrower or any of its Subsidiaries, or allegations that any of
them has any joint liability with the Borrower or any of its Restricted
Subsidiaries for any reason, (iii) any claims against the Banks, the
Administrative Agent, or any of them, by any shareholder or other investor in or
lender to the Borrower or any Restricted Subsidiary, by any brokers or finders
or investment advisers or investment bankers retained by the Borrower or by any
other third party, arising out of the Commitment or otherwise under this
Agreement; or (c) in connection with taxes (not including federal or state
income or franchise taxes or other taxes based solely upon the revenues or
income of such Persons), fees, and other charges payable in connection with the
Loans, or the execution, delivery, and enforcement of this Agreement, the
Security Documents, the other Loan Documents, and any amendments thereto or
waivers of any of the provisions thereof, unless the Person seeking
indemnification hereunder is determined in such case to have acted with gross
negligence or willful misconduct, in any case, by a final, non-appealable
judicial order. The obligations of the Borrower under this Section 5.12 are in
addition to, and shall not otherwise limit, any liabilities which the Borrower
might otherwise have in connection with any warranties or similar obligations of
the Borrower in any other Loan Document.
Section 5.13 Interest Rate Hedging. Within sixty (60) days of the
Agreement Date and forty-five (45) days after each Advance, the Borrower shall
enter into (and shall at all times thereafter maintain for a period of not less
than two (2) years) one or more Interest Hedge Agreements with respect to the
Borrower's interest obligations on not less than fifty percent (50%) of the
principal amount of the Loans outstanding from time to time. Such Interest Hedge
Agreements shall provide interest rate protection in conformity with
International Swap Dealers Association standards and for an average period of at
least two (2) years from the date of such Interest Hedge Agreements or, if
earlier, until the Maturity Date on terms reasonably acceptable to the
Administrative Agent, such terms to include consideration of the
creditworthiness of the other party to the proposed Interest Hedge Agreement.
All Obligations of the Borrower to either Administrative Agent or any of the
Banks pursuant to any Interest Hedge Agreement and all Liens granted to secure
such
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Obligations shall rank pari passu with all other Obligations and Liens securing
such other Obligations; and any Interest Hedge Agreement between the Borrower
and any other Person shall be unsecured.
Section 5.14 Covenants Regarding Formation of Restricted Subsidiaries
and Acquisitions; Partnership, Subsidiaries. At the time of (i) any Acquisition
permitted hereunder, (ii) the purchase by the Borrower or any of its Restricted
Subsidiaries of any interests in any Restricted or Unrestricted Subsidiary of
the Borrower, or (iii) the formation of any new Restricted or Unrestricted
Subsidiary of the Borrower or any of its Restricted Subsidiaries which is
permitted under this Agreement, the Borrower will, and will cause its Restricted
Subsidiaries, as appropriate, to (a) provide to the Administrative Agent an
executed Subsidiary Security Agreement for any new Restricted Subsidiary, in
substantially the form of Exhibit J attached hereto, together with appropriate
UCC-1 financing statements, as well as an executed Subsidiary Guaranty for such
new Restricted Subsidiary, in substantially the form of Exhibit H attached
hereto, which shall constitute both Security Documents and Loan Documents for
purposes of this Agreement, as well as a loan certificate for such new
Restricted Subsidiary, substantially in the form of Exhibit M attached hereto,
together with appropriate attachments; (b) pledge to the Administrative Agent
all of the stock or partnership interests (or other instruments or securities
evidencing ownership) of such Subsidiary or Person which is acquired or formed,
beneficially owned by the Borrower or any of the Borrower's Restricted
Subsidiaries, as the case may be, as additional Collateral for the Obligations
to be held by the Administrative Agent in accordance with the terms of the
Borrower's Pledge Agreement, or a new Subsidiary Pledge Agreement in
substantially the form of Exhibit I attached hereto, and execute and deliver to
the Administrative Agent all such documentation for such pledge as, in the
reasonable opinion of the Administrative Agent, is appropriate; and (c) with
respect to any Acquisition or Restricted Subsidiary, provide revised financial
projections for the remainder of the fiscal year and for each subsequent year
until the Maturity Date which reflect such Acquisition or formation, certified
by the Chief Financial Officer of the Borrower, together with a statement by
such Person that no Default exists or would be caused by such Acquisition or
formation, and all other documentation, including one or more opinions of
counsel, reasonably satisfactory to the Administrative Agent which in their
reasonable opinion is appropriate with respect to such Acquisition or the
formation of such Subsidiary. Notwithstanding the foregoing, the Borrower shall
not be required to pledge any of the stock or other ownership interests for any
Unrestricted Subsidiary which (x) was not formed or created in anticipation of
the Borrower's direct or indirect investment therein and (y) at the time such
stock or ownership interest was acquired by the Borrower or its Restricted
Subsidiaries is subject to a restriction on any such Lien (whether such
restriction is in such Person's formation documents or otherwise), but shall be
required to grant the Administrative Agent (for the benefit of the Banks) a Lien
upon any right to receive distributions from such Unrestricted Subsidiary. Any
document, agreement or instrument (other than the Projections) executed or
issued pursuant to this Section 5.14 shall be a "Loan Document" for purposes of
this Agreement.
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Section 5.15 Payment of Wages. The Borrower shall, and shall cause
each of its Restricted Subsidiaries to, at all times comply, in all material
respects, with the material requirements of the Fair Labor Standards Act, as
amended, including, without limitation, the provisions of such Act relating to
the payment of minimum and overtime wages as the same may become due from time
to time.
Section 5.16 Further Assurances. The Borrower will promptly cure, or
cause to be cured, defects in the creation and issuance of any of the Notes and
the execution and delivery of the Loan Documents (including this Agreement),
resulting from any acts or failure to act by the Borrower or any of the
Borrower's Restricted Subsidiaries or any employee or officer thereof. The
Borrower at its expense will promptly execute and deliver to the Administrative
Agent and the Banks, or cause to be executed and delivered to the Administrative
Agent and the Banks, all such other and further documents, agreements, and
instruments in compliance with or accomplishment of the covenants and agreements
of the Borrower in the Loan Documents, including this Agreement, or to correct
any omissions in the Loan Documents, or more fully to state the obligations set
out herein or in any of the Loan Documents, or to obtain any consents, all as
may be necessary or appropriate in connection therewith and as may be reasonably
requested.
ARTICLE 6 Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Banks shall otherwise consent in writing, the Borrower will furnish or cause to
be furnished to each Bank and the Administrative Agent, at their respective
offices:
Section 6.1 Quarterly Financial Statements and Information Within
forty-five (45) days after the last day of each of the first three (3) quarters
of each fiscal year of the Borrower, the balance sheets of the Borrower on a
consolidated basis with its Restricted Subsidiaries and a consolidating basis
with its Unrestricted Subsidiaries as at the end of such quarter and as of the
end of the preceding fiscal year, and the related statements of operations and
the related statements of cash flows of the Borrower on a consolidated basis
with its Restricted Subsidiaries and a consolidating basis with its Unrestricted
Subsidiaries for such quarter and for the elapsed portion of the year ended with
the last day of such quarter, which shall set forth in comparative form such
figures as at the end of and for such quarter and appropriate prior period and
shall be certified by the chief financial officer of the Borrower to have been
prepared in accordance with GAAP and to present fairly in all material respects
the financial position of the Borrower on a consolidated basis with its
Restricted Subsidiaries and a consolidating basis with its Unrestricted
Subsidiaries as at the end of such period and
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the results of operations for such period, and for the elapsed portion of the
year ended with the last day of such period, subject only to normal year-end and
audit adjustments.
Section 6.2 Annual Financial Statements and Information. Within
ninety (90) days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet of the Borrower and its Restricted Subsidiaries (and
unaudited consolidating balance sheet of the Borrower and its Unrestricted
Subsidiaries) as of the end of such fiscal year and the related audited
consolidated and unaudited consolidating statements of operations for such
fiscal year and for the previous fiscal year, the related audited consolidated
statements of cash flow and stockholders' equity for such fiscal year and for
the previous fiscal year, which shall be accompanied by an opinion which shall
be in scope and substance reasonably satisfactory to the Administrative Agent of
Deloitte & Touche, LLP, or other independent certified public accountants of
recognized national standing reasonably acceptable to the Administrative Agent,
together with a statement of such accountants that in connection with their
audit, nothing came to their attention that caused them to believe that the
Borrower was not in compliance with the terms, covenants, provisions or
conditions of Sections 7.8, 7.9, 7.10 and 7.11 hereof insofar as they relate to
accounting matters.
Section 6.3 Performance Certificates. At the time the financial
statements are furnished pursuant to Sections 6.1 and 6.2 hereof, a certificate
of the president or chief financial officer of the Borrower as to its financial
performance, in substantially the form attached hereto as Exhibit N:
(a) setting forth as and at the end of such quarterly period
or fiscal year, as the case may be, the arithmetical calculations required to
establish (i) any adjustment to the Applicable Margins, as provided for in
Section 2.3(f) hereof, and (ii) whether or not the Borrower was in compliance
with the requirements of Sections 7.7, 7.8, 7.9, 7.10 and 7.11 hereof;
(b) stating that, to the best of his or her knowledge, no
Default has occurred as at the end of such quarterly period or year, as the case
may be, or, if a Default has occurred, disclosing each such Default and its
nature, when it occurred, whether it is continuing and the steps being taken by
the Borrower with respect to such Default;
(c) containing a list of all Acquisitions, Investments,
Restricted Payments and dispositions of assets from the Agreement Date through
the date of such certificate, together with the total amount for each of the
foregoing categories; and
(d) setting forth the amount of distributions received from
Unrestricted Subsidiaries for such period.
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Section 6.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports,
if any, submitted to the Borrower by the Borrower's independent public
accountants regarding the Borrower, including, without limitation, any
management report prepared in connection with the annual audit referred to in
Section 6.2 hereof.
(b) Promptly upon receipt thereof, copies of any material
adverse notice or report regarding any License from the FCC.
(c) From time to time and promptly upon each request, such
data, certificates, reports, statements, documents or further information
regarding the business, assets, liabilities, financial position, projections,
results of operations or business prospects of the Borrower or any of its
Restricted Subsidiaries, as Administrative Agent or any Bank may reasonably
request.
(d) Annually, certificates of insurance indicating that the
requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with copies of any new or replacement insurance policies obtained
during such year.
(e) Prior to January 31 of each year, the annual budget for
the Borrower and the Borrower's Restricted Subsidiaries, including forecasts of
the income statement, the balance sheet and a cash flow statement for such year,
on a quarter by quarter basis.
(f) Promptly after the sending thereof, copies of all
statements, reports and other information which the Borrower or any of its
Restricted Subsidiaries sends to public security holders of the Borrower
generally or files with the Securities and Exchange Commission or any national
securities exchange.
Section 6.5 Notice of Litigation and Other Matters. Notice
specifying the nature and status of any of the following events, promptly, but
in any event not later than fifteen (15) days after the occurrence of any of the
following events becomes known to the Borrower:
(a) the commencement of all proceedings and investigations
by or before any governmental body and all actions and proceedings in any court
or before any arbitrator against the Borrower or any Restricted Subsidiary, or,
to the extent known to the Borrower, which could have a Material Adverse Effect;
(b) any material adverse change with respect to the
business, assets, liabilities, financial position, results of operations or
business prospects of the Borrower and its Restricted Subsidiaries, taken as a
whole, other than changes in the ordinary course of
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business which have not had and would not reasonably be expected to have a
Materially Adverse Effect and other than changes in the industry in which
Borrower or any of its Restricted Subsidiaries operate which would not
reasonably be expected to have a Material Adverse Effect;
(c) any material adverse amendment or change to the
projections or annual budget provided to the Banks by the Borrower;
(d) any Default or the occurrence or non-occurrence of any
event (i) which constitutes, or which with the passage of time or giving of
notice or both would constitute, a default by the Borrower or any Restricted
Subsidiary of the Borrower under any material agreement other than this
Agreement and the other Loan Documents to which the Borrower or any Restricted
Subsidiary of the Borrower is party or by which any of their respective
properties may be bound, or (ii) which could have a Materially Adverse Effect,
giving in each case a description thereof and specifying the action proposed to
be taken with respect thereto;
(e) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) with respect to any Plan of the Borrower or any of its Subsidiaries or
the institution or threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or naming it
or the trustee of any such Plan with respect to such Plan or any action taken by
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of the
Borrower to withdraw or partially withdraw from any Plan or to terminate any
Plan; and
(f) the occurrence of any event subsequent to the Agreement
Date which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section 4.1(m) of
this Agreement.
Section 6.6 Real Estate. Within seventy (70) days from closing, and
thereafter at the time the Borrower delivers its financial statements under
Sections 6.1 and 6.2 hereof, the Borrower shall provide to the Administrative
Agent a schedule setting forth the annual revenues generated by each owned
parcel of real estate and indicating that parcels representing not less than
seventy-five percent (75%) of such revenues are encumbered by mortgages in favor
of the Administrative Agent and the Banks.
ARTICLE 7 Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have
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been or can be fulfilled) and unless the Majority Banks, or such greater number
of Banks as may be expressly provided herein, shall otherwise give their prior
consent in writing:
Section 7.1 Indebtedness of the Borrower and its Subsidiaries. The
Borrower shall not, and shall not permit any of its Subsidiaries to, create,
assume, incur or otherwise become or remain obligated in respect of, or permit
to be outstanding, any Indebtedness except:
(a) the Obligations;
(b) accounts payable, accrued expenses (including taxes)
and customer advance payments incurred in the ordinary course of business;
(c) Indebtedness secured by Permitted Liens;
(d) obligations under Interest Hedge Agreements with
respect to the Loans;
(e) Indebtedness of the Borrower or any of its Restricted
Subsidiaries to the Borrower or any other Restricted Subsidiary so long as the
corresponding debt instruments are pledged to the Administrative Agent as
security for the Obligations and such Indebtedness is expressly permitted
pursuant to Section 7.5 hereof;
(f) Indebtedness incurred by any Unrestricted Subsidiary;
provided that such Indebtedness is non-recourse to the Borrower or any of its
Restricted Subsidiaries and no Lien is placed on the Borrower's or any of its
Restricted Subsidiaries' equity interests in such Unrestricted Subsidiary;
(g) Capitalized Lease Obligations not to exceed in the
aggregate at any one time outstanding $1,000,000; and
(h) Indebtedness of the Borrower or any of its Restricted
Subsidiaries incurred in connection with an Acquisition; provided that (i) such
Indebtedness (A) is owed to the seller thereof, (B) is unsecured, (C) has no
scheduled payment of principal prior to the full payment of the Obligations, (D)
is subject to terms and conditions and subordination provisions which are
acceptable to the Majority Banks on the date of incurrence, (E) when added to
all other Indebtedness outstanding under this Section 7.1(h) does not exceed
$5,000,000 and (ii) the Borrower is, at the time of incurrence of such
Indebtedness (and after giving effect thereto) in pro forma compliance with all
of the covenants contained in this Agreement.
Section 7.2 Limitation on Liens. The Borrower shall not, and shall
not permit any of its Restricted Subsidiaries to, create, assume, incur or
permit to exist or to be created,
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assumed, incurred or permitted to exist, directly or indirectly, any Lien on any
of its properties or assets, whether now owned or hereafter acquired, except for
Permitted Liens.
Section 7.3 Amendment and Waiver. The Borrower shall not, and shall
not permit any of its Restricted Subsidiaries to, enter into any amendment of,
or agree to or accept or consent to any waiver of any of the material provisions
of its articles or certificate of incorporation or partnership agreement, as
appropriate, if the effect thereof would be to adversely affect the rights of
the Banks hereunder or under any Loan Document.
Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, at any time sell, lease,
abandon, or otherwise dispose of any assets (other than assets disposed of in
the ordinary course of business) without the prior written consent of the Banks;
provided, however, that the prior written consent of the Banks shall not be
required for (i) the transfer of assets (including cash or cash equivalents)
among the Borrower and its Restricted Subsidiaries (excluding Subsidiaries
described in clause (b) of the definition of "Subsidiary") or for the transfer
of assets (including cash or cash equivalents) between or among Restricted
Subsidiaries (excluding Subsidiaries described in clause (b) of the definition
of "Subsidiary") of the Borrower, (ii) the disposition of communications tower
facilities that contribute in the aggregate, less than (A) five percent (5%) of
the Operating Cash Flow of Borrower for the twelve calendar month period
immediately preceding such disposition, and (B) fifteen percent (15%) of the
Operating Cash Flow of the Borrower for the period from the Agreement Date
through the date of such disposition, or (iii) subject to Section 2.5(c) hereof,
any other property (real or personal) not used or useful in Borrower's or such
Restricted Subsidiary's business; provided that, in each case, no Default or
Event of Default exists and none shall be caused to occur as a result thereof.
Upon any sale or disposition of a Restricted Subsidiary permitted hereunder, the
Administrative Agent and the Banks shall, at Borrower's expense, take such
actions as the Borrower reasonably requests to cause such Restricted Subsidiary
to be released from its obligations under the Subsidiary Guaranty.
(b) Liquidation or Merger. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, at any time, liquidate
or dissolve itself (or suffer any liquidation or dissolution) or otherwise wind
up, or enter into any merger, other than (i) a merger or consolidation among the
Borrower and one or more Restricted Subsidiaries, provided the Borrower is the
surviving corporation, or (ii) a merger between or among two or more Restricted
Subsidiaries, or (iii) in connection with an Acquisition permitted hereunder
effected by a merger in which the Borrower or, in a merger in which the Borrower
is not a party, a Restricted Subsidiary is the surviving corporation or the
surviving corporation becomes a Restricted Subsidiary; provided that, in each
case, no Default or Event of Default exists and none shall be caused to occur as
a result thereof.
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Section 7.5 Limitation on Guaranties. The Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, at any time Guaranty,
assume, be obligated with respect to, or permit to be outstanding any Guaranty
of, any obligation of any other Person other than (a) a guaranty by endorsement
of negotiable instruments for collection in the ordinary course of business, or
(b) obligations under agreements of the Borrower or any of its Restricted
Subsidiaries entered into in connection with Acquisitions permitted under this
Agreement leases of real property or the acquisition of services, supplies and
equipment in the ordinary course of business of the Borrower or any of its
Restricted Subsidiaries, or (c) Guaranties of Indebtedness incurred as permitted
pursuant to Section 7.1 hereof, or (d) as may be contained in any Loan Document
including, without limitation, any Subsidiary Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower shall not,
and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly make any loan or advance, or otherwise acquire for consideration
evidences of Indebtedness, capital stock or other securities of any Person or
other assets or property (other than assets or property in the ordinary course
of business), or make any Acquisition, except that so long as no Default then
exists or would be caused thereby:
(a) The Borrower and its Restricted Subsidiaries may,
directly or through a brokerage account (i) purchase marketable, direct
obligations of the United States of America, its agencies and instrumentalities
maturing within three hundred sixty-five (365) days of the date of purchase,
(ii) purchase commercial paper, money-market funds and business savings accounts
issued by corporations, each of which shall have a combined net worth of at
least $100,000,000 and each of which conducts a substantial part of its business
in the United States of America, maturing within two hundred seventy (270) days
from the date of the original issue thereof, and rated "P-2" or better by
▇▇▇▇▇'▇ Investors Service, Inc. or "A-2" or better by Standard and Poor's
Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇, (iii) purchase repurchase agreements,
bankers' acceptances, and domestic and Eurodollar certificates of deposit
maturing within three hundred sixty-five (365) days of the date of purchase
which are issued by, or time deposits maintained with, a United States national
or state bank the deposits of which are insured by the Federal Deposit Insurance
Corporation or the Federal Savings and Loan Insurance Corporation and having
capital, surplus and undivided profits totaling more than $100,000,000 and rated
"A" or better by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard and Poor's Ratings
Group, a division of ▇▇▇▇▇▇-▇▇▇▇, Inc.;
(b) Subject to compliance with Section 5.14 hereof, the
Borrower or any of its Restricted Subsidiaries may (i) make Acquisitions; (ii)
initiate construction of new communications tower facilities; and (iii) make
investments in Unrestricted Subsidiaries so long as (A) the maximum amount
expended to acquire tower management businesses and site acquisitions does not
exceed $25,000,000 in the aggregate, (B) the maximum amount of
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the proceeds of the Loans invested in or used to acquire interests in any
Unrestricted Subsidiary does not exceed the sum of (1) $13,500,000 in the
aggregate during the term hereof and (2) to the extent not used for Restricted
Payments, funds permitted to be used for Restricted Payments pursuant to
Sections 7.7(a) and (b) hereof, provided that proceeds from the disposition of
any such investment permitted by this clause (b)(iii), shall be available to be
used for Restricted Payments or to make additional investments permitted
hereunder; provided, further, that Borrower may, subject to Section 2.5(d)
hereof, use the Net Proceeds of any issuance of equity interests to invest in
any Unrestricted Subsidiary over and above the limitations set forth in this
clause (b) and (C) the contribution to the Operating Cash Flow of the Borrower
at the time of such investment of all such Unrestricted Subsidiaries does not
exceed fifteen percent (15%) of the Operating Cash Flow of the Borrower; and
(c) Loans or advances to OPM-USA-Inc., as contemplated by
that Stock Purchase Agreement between the Borrower and OPM-USA-Inc. not to
exceed $9,000,000 (so long as such loans and advances are evidenced by a
promissory note).
Section 7.7 Restricted Payments. The Borrower shall not, and shall
not permit any of its Restricted Subsidiaries to, directly or indirectly declare
or make any Restricted Payment; provided, however, that so long as no Default
hereunder then exists or would be caused thereby, the Borrower may make (a)
subject to Section 2.5(b) hereof, (i) cash distributions in an amount not to
exceed fifty percent (50%) of Excess Cash Flow for the immediately preceding
calendar year, on or after April 15 of each calendar year commencing on April
15, 2000 less (ii) any portion thereof used for purposes of investing in
Unrestricted Subsidiaries; (b) (i) cash distributions from fifty percent (50%)
of the net proceeds of any equity offering less (ii) any portion thereof used
for purposes of investing in Unrestricted Subsidiaries, subject to Section
2.5(d) hereof and so long as the Leverage Ratio on such date is less than 4.0 to
1 after giving effect to any payment pursuant to Section 2.7(b)(iv) hereof; and
(c) interest payments on Indebtedness incurred pursuant to Section 7.1(h)
hereof.
Section 7.8 Leverage Ratio.
(a) As of the end of any calendar quarter, and (b) at the
time of any Advance hereunder (after giving effect to such Advance), the
Borrower shall not permit its Leverage Ratio to exceed the ratios set forth
below during the periods indicated:
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Period Ratio
------ -----
Agreement Date through September 29, 1999 6.00:1
September 30, 1999 through March 30, 2000 5.50:1
March 31, 2000 through September 29, 2000 5.00:1
September 30, 2000 through March 30, 2001 4.50:1
March 31, 2001 through December 30, 2001 4.00:1
December 31, 2001 through December 30, 2002 3.50:1
December 31, 2002 and thereafter 3.00:1
Section 7.9 Interest Coverage Ratio. The Borrower and its consolidated
Restricted Subsidiaries shall maintain, on a consolidated basis, at all times
during the applicable periods set forth below, an Interest Coverage Ratio for
such fiscal quarter of not less than the ratio set forth below opposite each
such period:
Period Ratio
------ -----
Agreement Date through September 29, 2000 2.00:1
September 30, 2000 and thereafter 2.50:1
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service.
(a) As of the end of any calendar quarter, and (b) at the
time of any Advance hereunder (after giving effect to such Advance), the
Borrower shall not permit the ratio of (i) its Annualized Operating Cash Flow
(for the calendar quarter/month end being tested in the case of Section 7.10(a)
hereof, or for the most recently completed calendar quarter/month end, in the
case of Section 7.10(b) hereof) to (ii) its Pro Forma Debt Service to be less
than the ratio set forth below opposite each such period:
Period Ratio
------ -----
Agreement Date through September 29, 2000 1.10:1
September 30, 2000 and thereafter 1.15:1
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Section 7.11 Limitation on Capital Expenditures. The Borrower, on a
consolidated basis with its Restricted Subsidiaries, shall not permit its
Capital Expenditures to exceed the amounts set forth below for the periods
indicated:
Period Dollar Amount
------ -------------
From January 1, 1997 through December 31, 1997 $15,000,000
From January 1, 1998 through December 31, 1998 $22,000,000
From January 1, 1999 through December 31, 1999 $10,000,000
From January 1, 2000 through December 31, 2000 $ 5,000,000
and each calendar year period thereafter
To the extent not used in any calendar year, an amount equal to the lesser of
(a) the unused amounts permitted for Capital Expenditures for such calendar year
and (b) fifteen percent (15%) of the maximum Capital Expenditure availability
for such calendar year may (exclusive of any carryforwards from prior periods)
be carried forward to the next calendar year, and may be spent in addition to
the otherwise applicable limitations for such year.
Section 7.12 Affiliate Transactions. Except as specifically provided
herein (including, without limitation, Sections 7.4 and 7.7 hereof) and as may
be described on Schedule 4.1(s) attached hereto, the Borrower shall not, and
shall not permit any of its Restricted Subsidiaries to, at any time engage in
any transaction with an Affiliate, or make an assignment or other transfer of
any of its properties or assets to any Affiliate, on terms less advantageous to
the Borrower or such Restricted Subsidiary than would be the case if such
transaction had been effected with a non-Affiliate.
Section 7.13 Real Estate. Subject to Section 5.11 hereof, the
Borrower and its Restricted Subsidiaries may purchase real estate solely for use
in the business of the Borrower and its Restricted Subsidiaries unless
incidental to an Acquisition permitted hereunder.
Section 7.14 ERISA Liabilities. The Borrower shall not, and shall
cause each of its ERISA Affiliates not to, (a) permit the assets of any of their
respective Plans to be less than the amount necessary to provide all accrued
benefits under such Plans, or (b) enter into any Multiemployer Plan.
Section 7.15 Sales and Leasebacks. The Borrower will not and will not
permit any of its Restricted Subsidiaries to enter into, any arrangement,
directly or indirectly, with any third party whereby the Borrower or a
Restricted Subsidiary shall sell or transfer any
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property, real or personal, whether now owned or hereafter acquired, and whereby
the Borrower or such Restricted Subsidiary shall then or thereafter rent or
lease as lessee such property or any part thereof or other property which the
Borrower or such Restricted Subsidiary intends to use for substantially the same
purpose or purposes as the property sold or transferred.
ARTICLE 8 Default
Section 8.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this
Agreement shall prove incorrect or misleading in any material respect when made
or deemed to be made pursuant to Section 4.2 hereof;
(b) The Borrower shall default in the payment of (i) any
interest under any of the Notes or fees or other amounts payable to the Banks
and the Administrative Agent under any of the Loan Documents, or any of them,
when due, and such Default shall not be cured by payment in full within three
(3) Business Days from the due date or (ii) any principal under any of the Notes
when due;
(c) The Borrower shall default in the performance or
observance of any agreement or covenant contained in Sections 5.2(a) or 5.10
hereof, or Sections 7.1, 7.2, 7.4, 7.5, 7.7, 7.8, 7.9, 7.10 and 7.11 hereof;
(d) The Borrower shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to elsewhere in this Section 8.1, and such default shall
not be curable within a period of thirty (30) days (or with respect to Sections
5.3, 5.4, 5.5, 5.6, 5.7, 5.8, 5.9, 5.14, 5.15, 5.16, 6.4, 6.5, 7.3, 7.12, 7.13
and 7.14 hereof, such longer period not to exceed sixty (60) days if such
default is curable within such period and the Borrower is proceeding in good
faith with all diligent efforts to cure such default) from the later of (i)
occurrence of such Default and (ii) the date on which such Default became known
to the Borrower;
(e) There shall occur any default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the Loan Documents (other than this Agreement or as
otherwise provided in Section 8.1 of this Agreement) by the Borrower, any of its
Restricted Subsidiaries, or any other obligor thereunder, which shall not be
cured within a period of thirty (30) days (or such longer period not to exceed
sixty (60) days if such default is curable within such period and the
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Borrower is proceeding in good faith with all diligent efforts to cure such
default) from the later of (i) occurrence of such Default and (ii) date on which
such default became known to the Borrower;
(f) There shall be entered and remain unstayed a decree or
order for relief in respect of the Borrower or any of the Borrower's Restricted
Subsidiaries under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable Federal or state bankruptcy law or
other similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Borrower or any of the
Borrower's Restricted Subsidiaries, or of any substantial part of their
respective properties, or ordering the winding-up or liquidation of the affairs
of the Borrower, or any of the Borrower's Restricted Subsidiaries; or an
involuntary petition shall be filed against the Borrower or any of the
Borrower's Restricted Subsidiaries and a temporary stay entered, and (i) such
petition and stay shall not be diligently contested, or (ii) any such petition
and stay shall continue undismissed for a period of ninety (90) consecutive
days;
(g) The Borrower or any of the Borrower's Restricted
Subsidiaries shall file a petition, answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other applicable Federal or state bankruptcy law or other similar law, or the
Borrower or any of the Borrower's Restricted Subsidiaries shall consent to the
institution of proceedings thereunder or to the filing of any such petition or
to the appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Borrower or
any of the Borrower's Restricted Subsidiaries or of any substantial part of
their respective properties, or the Borrower or any of the Borrower's Restricted
Subsidiaries shall fail generally to pay their respective debts as they become
due or shall be adjudicated insolvent; the Borrower shall suspend or discontinue
its business; the Borrower or any of the Borrower's Restricted Subsidiaries
shall have concealed, removed any of its property with the intent to hinder or
defraud its creditors or shall have made a fraudulent or preferential transfer
under any applicable fraudulent conveyance or bankruptcy law, or the Borrower or
any of the Borrower's Restricted Subsidiaries shall take any action in
furtherance of any such action;
(h) A judgment not covered by insurance or indemnification,
where the indemnifying party has agreed to indemnify and is financially able to
do so, shall be entered by any court against the Borrower or any of the
Borrower's Restricted Subsidiaries for the payment of money which exceeds
singly, or in the aggregate with other such judgments, $1,000,000, or a warrant
of attachment or execution or similar process shall be issued or levied against
property of the Borrower or any of the Borrower's Restricted Subsidiaries which,
together with all other such property of the Borrower or any of the Borrower's
Restricted Subsidiaries subject to other such process, exceeds in value
$1,000,000 in the aggregate, and if, within thirty (30) days after the entry,
issue or levy thereof, such judgment, warrant or process shall not have been
paid or discharged or stayed pending appeal or
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removed to bond, or if, after the expiration of any such stay, such judgment,
warrant or process shall not have been paid or discharged or removed to bond;
(i) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan maintained by the Borrower or any of its Subsidiaries or any ERISA
Affiliate, or to which the Borrower or any of its Subsidiaries or any ERISA
Affiliate has any liabilities, or any trust created thereunder; or a trustee
shall be appointed by a United States District Court to administer any such
Plan; or PBGC shall institute proceedings to terminate any such Plan; or the
Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur any
liability to PBGC in connection with the termination of any such Plan; or any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
or any ERISA Affiliate shall engage in a "prohibited transaction" (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code;
(j) There shall occur (i) any acceleration of the maturity
of any Indebtedness of the Borrower or any of the Borrower's Restricted
Subsidiaries in an aggregate principal amount exceeding $1,000,000, or, as a
result of a failure to comply with the terms thereof, such Indebtedness shall
otherwise have become due and payable; (ii) any event or condition the
occurrence of which would permit such acceleration of such Indebtedness, or
which, as a result of a failure to comply with the terms thereof, would make
such Indebtedness otherwise due and payable, and which event or condition has
not been cured within any applicable cure period or waived in writing prior to
any declaration of an Event of Default or acceleration of the Loans hereunder;
or (iii) any material default under any Interest Hedge Agreement which would
permit the obligation of the Borrower to make payments to the counterparty
thereunder to be then due and payable;
(k) The Borrower and its Restricted Subsidiaries are for
any reason no longer able to operate or manage the related communications tower
facilities or portions thereof and retain the revenue received therefrom, and
the overall effect of such loss, destruction, termination, revocation or failure
to renew would be to reduce Operating Cash Flow (determined as at the last day
of the most recently ended fiscal year of the Borrower) by ten percent (10%) or
more;
(l) Any material Loan Document, or any material provision
thereof, shall at any time and for any reason be declared by a court of
competent jurisdiction to be null and void, or a proceeding shall be commenced
by the Borrower or any of the Borrower's Restricted Subsidiaries or by any
governmental authority having jurisdiction over the Borrower or any of the
Borrower's Restricted Subsidiaries seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof),
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or the Borrower or any of the Borrower's Subsidiaries shall deny that it has any
liability or obligation for the payment of principal or interest purported to be
created under any Loan Document;
(m) Any material Security Document shall, for any reason,
fail or cease (except by reason of lapse of time) to create a valid and
perfected and first-priority Lien on or Security Interest in any material
portion of the Collateral purported to be covered thereby;
(n) There shall occur any Change of Control; provided,
however, that if such Change of Control is solely a result of American Radio
Systems no longer owning 51% of the Capital Stock of the Borrower, no Event of
Default shall occur hereunder, if the Borrower has, on or prior to such date,
received equity contributions of not less than $125,000,000 (of which not less
than $100,000,000 must be in cash or cash equivalents) in the aggregate;
(o) Borrower or any of its Restricted Subsidiaries shall be
indicted under the Racketeer Influenced and Corrupt Organizations Act of 1970
(18 U.S.C.ss.1961 et seq.); or
(p) The Parent shall incur or suffer to exist any
Indebtedness for Money Borrowed other than Indebtedness for Money Borrowed which
(i) does not exceed $50,000,000 in principal amount outstanding (ii) has no
scheduled principal repayment prior to the Maturity Date, (iii) has a scheduled
maturity not earlier than the second anniversary of the Maturity Date, (iv) does
not cause the ratio of Indebtedness of the Borrower and the Parent to Annualized
Operating Cash Flow to exceed 7.0:1 and (v) is approved in all respects by the
Majority Banks.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1 (other
than an Event of Default under Section 8.1(f) or Section 8.1(g) hereof) shall
have occurred and shall be continuing, the Administrative Agent, at the request
of the Majority Banks subject to Section 9.8(a) hereof, shall (i) terminate the
Commitment, and/or (ii) declare the principal of and interest on the Loans and
the Notes and all other amounts owed to the Banks and the Administrative Agent
under this Agreement, the Notes and any other Loan Documents to be forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, anything in this Agreement, the Notes
or any other Loan Document to the contrary notwithstanding, and the Commitment
shall thereupon forthwith terminate.
(b) Upon the occurrence and continuance of an Event of
Default specified in Section 8.1(f) or Section 8.1(g) hereof, all principal,
interest and other amounts due
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hereunder and under the Notes, and all other Obligations, shall thereupon and
concurrently therewith become due and payable and the Commitment shall forthwith
terminate and the principal amount of the Loans outstanding hereunder shall bear
interest at the Default Rate, all without any action by the Administrative Agent
or the Banks or the Majority Banks or any of them and without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or in the other Loan Documents to the contrary
notwithstanding.
(c) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Administrative Agent and the
Banks shall have all of the post-default rights granted to them, or any of them,
as applicable under the Loan Documents and under Applicable Law.
(d) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Administrative Agent shall have
the right (but not the obligation) upon the request of the Banks to operate the
communications tower facilities of the Borrower and its Restricted Subsidiaries
in accordance with the terms of the Licenses and pursuant to the terms and
subject to any limitations contained in the Security Documents and, within
guidelines established by the Majority Banks, to make any and all payments and
expenditures necessary or desirable in connection therewith, including, without
limitation, payment of wages as required under the Fair Labor Standards Act, as
amended, and of any necessary withholding taxes to state or federal authorities.
In the event the Majority Banks fail to agree upon the guidelines referred to in
the preceding sentence within six (6) Business Days' after the Administrative
Agent has begun to operate the communications tower facilities, the
Administrative Agent may, after giving three (3) days' prior written notice to
the Banks of its intention to do so, make such payments and expenditures as it
deems reasonable and advisable in its sole discretion to maintain the normal
day-to-day operation of such communications tower facilities. Such payments and
expenditures in excess of receipts shall constitute Advances under the
Commitment, not in excess of the amount of the Commitment. Advances made
pursuant to this Section 8.2(d) shall bear interest as provided in Section
2.3(d) hereof and shall be payable on demand. The making of one or more Advances
under this Section 8.2(d) shall not create any obligation on the part of the
Banks to make any additional Advances hereunder. No exercise by the
Administrative Agent of the rights granted to it under this Section 8.2(d) shall
constitute a waiver of any other rights and remedies granted to the
Administrative Agent and the Banks, or any of them, under this Agreement or at
law. The Borrower hereby irrevocably appoints the Administrative Agent as agent
for the Banks, the true and lawful attorney of the Borrower, in its name and
stead and on its behalf, to execute, receipt for or otherwise act in connection
with any and all contracts, instruments or other documents in connection with
the completion and operation of the communications tower facilities in the
exercise of the Administrative Agent's and the Banks' rights under this Section
8.2(d). Such power of attorney is coupled with an interest and is irrevocable.
The rights of the Administrative Agent under this Section 8.2(d) shall be
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subject to its prior compliance with the Communications Act and the FCC rules
and policies promulgated thereunder to the extent applicable to the exercise of
such rights.
(e) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Administrative Agent, upon
request of the Majority Banks, shall have the right to the appointment of a
receiver for the properties and assets of the Borrower and its Restricted
Subsidiaries, and the Borrower, for itself and on behalf of its Restricted
Subsidiaries, hereby consents to such rights and such appointment and hereby
waives any objection the Borrower or any Restricted Subsidiary may have thereto
or the right to have a bond or other security posted by the Administrative Agent
on behalf of the Banks, in connection therewith. The rights of the
Administrative Agent under this Section 8.2(e) shall be subject to its prior
compliance with the Communications Act and the FCC rules and policies
promulgated thereunder to the extent applicable to the exercise of such rights.
(f) The rights and remedies of the Administrative Agent and
the Banks hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments under this Agreement made to the Administrative Agent and the
Banks or otherwise received by any of such Persons (from realization on
Collateral for the Obligations or otherwise) shall be paid over to the
Administrative Agent (if necessary) and distributed by the Administrative Agent
as follows: first, to the Administrative Agent's reasonable costs and expenses,
if any, incurred in connection with the collection of such payment or
prepayment, including, without limitation, any reasonable costs incurred by it
in connection with the sale or disposition of any Collateral for the Obligations
and all amounts under Section 11.2(b) and (c) hereof; second, to the Banks or
the Administrative Agent for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to the Banks pro rata on the basis of
their respective unpaid principal amounts (except as provided in Section 2.2(e)
hereof), to the payment of any unpaid interest which may have accrued on the
Obligations; fourth, to the Banks pro rata until all Loans have been paid in
full (and, for purposes of this clause, obligations under Interest Hedge
Agreements with the Banks or any of them shall be paid on a pro rata basis with
the Loans); fifth, to the Banks pro rata on the basis of their respective unpaid
amounts, to the payment of any other unpaid Obligations; and sixth, to the
Borrower or as otherwise required by law.
ARTICLE 9 The Administrative Agent
Section 9.1 Appointment and Authorization. Each Bank hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Note
irrevocably to appoint and authorize, the
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Administrative Agent to take such actions as its agent on its behalf and to
exercise such powers hereunder and under the other Loan Documents as are
delegated by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Neither the Administrative Agent, nor any of its
respective directors, officers, employees or agents, shall be liable for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat
each Bank, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Bank in its
portion of the Loans and in its Note until written notice of transfer, signed by
such Bank (or the Person designated in the last notice filed with the
Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent may
consult with Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Atlanta, Georgia, special
counsel to the Administrative Agent, or with other legal counsel selected by it
and shall not be liable for any action taken or suffered by it in good faith in
consultation with the Majority Banks and in reasonable reliance on such
consultations.
Section 9.4 Documents. The Administrative Agent shall be under no
duty to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in connection
herewith, and the Administrative Agent shall be entitled to assume that they are
valid, effective and genuine, have been signed or sent by the proper parties and
are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to the
Commitment and the Loans, the Administrative Agent shall have the same rights
and powers hereunder as any other Bank and the Administrative Agent and
Affiliates of the Administrative Agent may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower, any of its
Subsidiaries or any Affiliates of, or Persons doing business with, the Borrower,
as if they were not affiliated with the Administrative Agent and without any
obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent. The duties
and obligations of the Administrative Agent under this Agreement are only those
expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified in writing by
the Borrower, of such fact, or has been notified by a Bank in writing that such
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Bank considers that a Default or an Event of Default has occurred and is
continuing, and such Bank shall specify in detail the nature thereof in writing.
The Administrative Agent shall not be liable hereunder for any action taken or
omitted to be taken except for its own gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction. The Administrative Agent shall provide each Bank with copies of
such documents received from the Borrower as such Bank may reasonably request.
Section 9.7 Action by the Administrative Agent.
(a) The Administrative Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights
which may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect
of, this Agreement, unless the Administrative Agent shall have been instructed
by the Majority Banks to exercise or refrain from exercising such rights or to
take or refrain from taking such action; provided that the Administrative Agent
shall not exercise any rights under Section 8.2(a) of this Agreement without the
request of the Majority Banks (or, where expressly required, all the Banks),
unless time is of the essence, in which case, such action can be taken at the
request of the Administrative Agent. The Administrative Agent shall incur no
liability under or in respect of this Agreement with respect to anything which
it may do or refrain from doing in the reasonable exercise of its judgment or
which may seem to it to be necessary or desirable in the circumstances, except
for its gross negligence or willful misconduct as determined by a final, non-
appealable judicial order of a court having jurisdiction over the subject
matter.
(b) The Administrative Agent shall not be liable to the
Banks or to any Bank or the Borrower or any of the Borrower's Subsidiaries in
acting or refraining from acting under this Agreement or any other Loan Document
in accordance with the instructions of the Majority Banks (or, where expressly
required, all the Banks), and any action taken or failure to act pursuant to
such instructions shall be binding on all Banks, except for its gross negligence
or willful misconduct as determined by a final, non-appealable judicial order of
a court having jurisdiction over the subject matter. The Administrative Agent
shall not be obligated to take any action which is contrary to law or which
would in its reasonable opinion subject it to liability.
Section 9.8 Notice of Default or Event of Default. In the event that
the Administrative Agent or any Bank shall acquire actual knowledge, or shall
have been notified, of any Default or Event of Default, the Administrative Agent
or such Bank shall promptly notify the Banks (provided failure to give such
notice shall not result in any liability on the part of such Bank or
Administrative Agent), and the Administrative Agent shall take such action and
assert such rights under this Agreement and the other Loan Documents as the
Majority Banks shall request in writing, and the Administrative Agent
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shall not be subject to any liability by reason of its acting pursuant to any
such request. If the Majority Banks shall fail to request the Administrative
Agent to take action or to assert rights under this Agreement or any other Loan
Documents in respect of any Default or Event of Default within ten (10) days
after their receipt of the notice of any Default or Event of Default from the
Administrative Agent or any Bank, or shall request inconsistent action with
respect to such Default or Event of Default, the Administrative Agent may, but
shall not be required to, take such action and assert such rights (other than
rights under Article 8 hereof) as it deems in its discretion to be advisable for
the protection of the Banks, except that, if the Majority Banks have instructed
the Administrative Agent not to take such action or assert such right, in no
event shall the Administrative Agent act contrary to such instructions, unless
time is of the essence, in which case, the Administrative Agent may act in
accordance with its reasonable discretion.
Section 9.9 Responsibility Disclaimed. The Administrative Agent shall
not be under any liability or responsibility whatsoever as Administrative Agent:
(a) To the Borrower or any other Person as a consequence of
any failure or delay in performance by, or any breach by, any Bank or Banks of
any of its or their obligations under this Agreement;
(b) To any Bank or Banks as a consequence of any failure or
delay in performance by, or any breach by, (i) the Borrower of any of its
obligations under this Agreement or the Notes or any other Loan Document, or
(ii) any Restricted Subsidiary of the Borrower or any other obligor under any
other Loan Document;
(c) To any Bank or Banks, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(d) To any Person for any act or omission other than that
arising from gross negligence or willful misconduct of the Administrative Agent
as determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
Section 9.10 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses (other than the loss of principal and interest
hereunder in the event of a bankruptcy or out-of-court 'work-out' of the Loans),
damages, penalties, actions, judgments, suits, costs, expenses (including fees
and expenses of experts, agents, consultants and counsel), or disbursements
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of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of this Agreement, any other Loan Document, or any other document contemplated
by this Agreement or any other Loan Document or any action taken or omitted by
the Administrative Agent under this Agreement, any other Loan Document, or any
other document contemplated by this Agreement, except that no Bank shall be
liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent as determined by a final, non-appealable
judicial order of a court having jurisdiction over the subject matter.
Section 9.11 Credit Decision. Each Bank represents and warrants to
each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement and
to make its portion of the Loans it has independently taken whatever steps it
considers necessary to evaluate the financial condition and affairs of the
Borrower, and that it has made an independent credit judgment, and that it has
not relied upon the Administrative Agent or information provided by the
Administrative Agent (other than information provided to the Administrative
Agent by the Borrower and forwarded by the Administrative Agent to the Banks);
and
(b) So long as any portion of the Loans remains outstanding
or such Bank has an obligation to make its portion of Advances hereunder, it
will continue to make its own independent evaluation of the financial condition
and affairs of the Borrower.
Section 9.12 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Banks and the Borrower and may be removed at any time for cause
by the Majority Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Administrative Agent which
appointment shall, prior to a Default, be subject to the consent of the
Borrower, acting reasonably. If (a) no successor Administrative Agent shall have
been so appointed by the Majority Banks or (b) if appointed, no successor
Administrative Agent shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gave notice of resignation or the
Majority Banks removed the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent which shall be any Bank or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000 and
which shall be reasonably acceptable to the Borrower. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent
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shall thereupon succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the retiring Administrative Agent and the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
the provisions of this Article shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
the Administrative Agent. In the event that the Administrative Agent or any of
its respective affiliates ceases to be a Bank hereunder, such Person shall
resign its agency hereunder.
Section 9.13 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care, and shall be entitled to advice
of counsel concerning all matters pertaining to such duties.
ARTICLE 10 Changes in Circumstances
Affecting LIBOR Advances
Section 10.1 LIBOR Basis Determination Inadequate or Unfair. If with
respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Banks that deposits
in dollars (in the applicable amount) are not being offered to each of the Banks
in the relevant market for such Interest Period, the Administrative Agent shall
forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Administrative Agent notifies the Borrower that the circumstances giving rise to
such situation no longer exist, the obligations of any affected Bank to make its
portion of such LIBOR Advances shall be suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of
any Applicable Law, or any change in any Applicable Law (whether adopted before
or after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Bank to make, maintain or fund its portion of LIBOR Advances,
such Bank shall so notify the Administrative Agent, and the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower. Before
giving any notice to the Administrative Agent pursuant to this Section 10.2,
such Bank shall designate a different lending office if such designation will
avoid the need for giving such notice and will not, in the sole reasonable
judgment of such Bank, be otherwise materially disadvantageous to such Bank.
Upon receipt of such notice, notwithstanding anything contained in Article 2
hereof, the Borrower shall repay in full the then outstanding principal amount
of such Bank's portion of each affected LIBOR Advance, together with accrued
interest thereon, on either (a) the last
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day of the then current Interest Period applicable to such affected LIBOR
Advances if such Bank may lawfully continue to maintain and fund its portion of
such LIBOR Advance to such day or (b) immediately if such Bank may not lawfully
continue to fund and maintain its portion of such affected LIBOR Advances to
such day. Concurrently with repaying such portion of each affected LIBOR
Advance, the Borrower may borrow a Base Rate Advance from such Bank, whether or
not it would have been entitled to effect such borrowing and such Bank shall
make such Advance, if so requested, in an amount such that the outstanding
principal amount of the affected Note held by such Bank shall equal the
outstanding principal amount of such Note or Notes immediately prior to such
repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Bank with any directive (whether or not having the force of law) of any
such authority, central bank or comparable agency:
(1) shall subject any Bank to any tax, duty or other
charge with respect to its obligation to make its portion of LIBOR
Advances, or its portion of existing Advances, or shall change the
basis of taxation of payments to any Bank of the principal of or
interest on its portion of LIBOR Advances or in respect of any other
amounts due under this Agreement, in respect of its portion of LIBOR
Advances or its obligation to make its portion of LIBOR Advances
(except for changes in the rate or method of calculation of tax on the
revenues or net income of such Bank); or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System, but excluding any included in
an applicable Eurodollar Reserve Percentage), special deposit, capital
adequacy, assessment or other requirement or condition against assets
of, deposits with or for the account of, or commitments or credit
extended by, any Bank or shall impose on any Bank or the London
interbank borrowing market any other condition affecting its obligation
to make its portion of such LIBOR Advances or its portion of existing
Advances;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Bank under this Agreement or
under its Note with respect thereto, then, within ten (10) days after demand by
such Bank, the Borrower agrees to pay to such Bank such additional amount or
amounts as will compensate such Bank for such
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increased costs. Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section 10.3 and will designate a different lending office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole reasonable judgment of such Bank made in good faith, be
otherwise disadvantageous to such Bank.
(b) Any Bank claiming compensation under this Section 10.3
shall provide the Borrower with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail. Such certificate shall be presumptively correct
absent manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods. If any Bank demands compensation
under this Section 10.3, the Borrower may at any time, upon at least five (5)
Business Days' prior notice to such Bank, prepay in full such Bank's portion of
the then outstanding LIBOR Advances, together with accrued interest and fees
thereon to the date of prepayment, along with any reimbursement required under
Section 2.10 hereof and this Section 10.3. Concurrently with prepaying such
portion of LIBOR Advances the Borrower may, whether or not then entitled to make
such borrowing, borrow a Base Rate Advance, or a LIBOR Advance not so affected,
from such Bank, and such Bank shall, if so requested, make such Advance in an
amount such that the outstanding principal amount of the affected Note or Notes
held by such Bank shall equal the outstanding principal amount of such Note or
Notes immediately prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any
Bank to make its portion of any type of LIBOR Advance, or requiring such Bank's
portion of LIBOR Advances to be repaid or prepaid, then, unless and until such
Bank notifies the Borrower that the circumstances giving rise to such repayment
no longer apply, all amounts which would otherwise be made by such Bank as its
portion of LIBOR Advances shall, unless otherwise notified by the Borrower, be
made instead as Base Rate Advances.
ARTICLE 11 Miscellaneous
Section 11.1 Notices.
(a) Except as otherwise expressly provided herein, all
notices and other communications under this Agreement and the other Loan
Documents (unless otherwise specifically stated therein) shall be in writing and
shall be deemed to have been given three (3) Business Days after deposit in the
mail, designated as certified mail, return receipt requested, postage-prepaid,
or one (1) Business Day after being entrusted to a reputable commercial
overnight delivery service for next day delivery, or when sent on a Business Day
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prior to 5:00 p.m. (New York time) by telecopy addressed to the party to which
such notice is directed at its address determined as provided in this Section
11.1. All notices and other communications under this Agreement shall be given
to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
American Tower Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer
with copies to:
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Department
with a copy to:
The Toronto-Dominion Bank
Toronto Dominion Securities, Inc.
USA Division
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Managing Director, Communications Finance
and with a copy to:
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Sixteenth Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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(iii) If to the Banks, to them at the addresses set
forth beside their names on the signature pages hereof.
The failure to provide copies shall not affect the validity of the notice given
to the primary recipient.
(b) Any party hereto may change the address to which
notices shall be directed under this Section 11.1 by giving ten (10) days'
written notice of such change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or reimburse:
(a) all reasonable out-of-pocket expenses of the
Administrative Agent in connection with the preparation, negotiation, execution
and delivery of this Agreement and the other Loan Documents, and the
transactions contemplated hereunder and thereunder and the making of the initial
Advance hereunder (whether or not such Advance is made), including, but not
limited to, the reasonable fees and disbursements of Powell, Goldstein, ▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, special counsel for the Administrative Agent; and
(b) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Banks of enforcement under this Agreement or the
other Loan Documents and all reasonable out-of-pocket costs and expenses of
collection if an Event of Default occurs in the payment of the Notes, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Banks.
Section 11.3 Waivers. The rights and remedies of the Administrative
Agent and the Banks under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent, the Majority
Banks, or the Banks, or any of them, in exercising any right, shall operate as a
waiver of such right. The Administrative Agent and the Banks expressly reserve
the right to require strict compliance with the terms of this Agreement in
connection with any future funding of a Request for Advance. In the event the
Banks decide to fund a Request for Advance at a time when the Borrower is not in
strict compliance with the terms of this Agreement, such decision by the Banks
shall not be deemed to constitute an undertaking by the Banks to fund any
further Request for Advance or preclude the Banks or the Administrative Agent
from exercising any rights available under the Loan Documents or at law or
equity. Any waiver or indulgence granted by the Administrative Agent, the Banks,
or the Majority Banks, shall not constitute a modification of this Agreement or
any other Loan Document, except to the extent expressly provided in such waiver
or indulgence, or constitute a course of dealing at variance with the terms of
this Agreement or any other Loan
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Document such as to require further notice of their intent to require strict
adherence to the terms of this Agreement or any other Loan Document in the
future.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default and during the continuation thereof,
the Administrative Agent and each of the Banks are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Bank or Administrative Agent, to or for the
credit or the account of the Borrower or any of its Restricted Subsidiaries,
against and on account of the obligations and liabilities of the Borrower to the
Banks and the Administrative Agent, including, but not limited to, all
Obligations and any other claims of any nature or description arising out of or
connected with this Agreement, the Notes or any other Loan Document,
irrespective of whether (a) any Bank or Administrative Agent shall have made any
demand hereunder or (b) any Bank or Administrative Agent shall have declared the
principal of and interest on the Loans and other amounts due hereunder to be due
and payable as permitted by Section 8.2 hereof and although such obligations and
liabilities or any of them shall be contingent or unmatured. Upon direction by
the Administrative Agent with the consent of all of the Banks each Bank holding
deposits of the Borrower or any of its Restricted Subsidiaries shall exercise
its set-off rights as so directed; and, within one (1) Business Day following
any such setoff, the Administrative Agent shall give notice thereof to the
Borrower. Notwithstanding anything to the contrary contained in this Section
11.4, no Bank shall exercise any right of offset without the prior consent of
the Majority Banks so long as the Obligations shall be secured by any real
property or real property interest including leaseholds located in the State of
California, it being understood and agreed that the provisions of this sentence
are for the exclusive benefit of the Banks, may be amended, modified or waived
by the Majority Banks without notice to or consent of the Borrower or any
Subsidiary of the Borrower and shall not constitute a waiver of any rights
against the Borrower or any Subsidiary or against any Collateral.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder, under the Notes or under any other Loan
Document without the prior written consent of each Bank.
(b) Each Bank may sell (i) assignments of any amount of its
interest hereunder to any Bank, or (ii) assignments or participations of one
hundred percent (100%) (or, with the consent of the Borrower, a smaller
percentage) of its interest hereunder to (A)
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one (1) or more wholly-owned Affiliates of such Bank (provided that, if such
Affiliate is not a financial institution, such Bank shall be obligated to
repurchase such assignment if such Affiliate is unable to honor its obligations
hereunder), or (B) any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any
Operating Circular issued by such Federal Reserve Bank (no assignment shall
relieve such Bank from its obligations hereunder).
(c) Each of the Banks may at any time enter into assignment
agreements or participations with one or more other banks or other Persons
pursuant to which each Bank may assign or participate its interest under this
Agreement and the other Loan Documents, including, its interest in any
particular Advance or portion thereof; provided, that (1) all assignments (other
than assignments described in clause (b) hereof) shall be in minimum principal
amounts of the lesser of (X) $5,000,000, and (Y) the amount of such Bank's
Commitment (in a single assignment only), and (2) all assignments (other than
assignments described in clause (b) hereof) and participations hereunder shall
be subject to the following additional terms and conditions:
(i) No assignment (except assignments permitted in
Section 11.5(b) hereof) shall be sold without the prior
consent of the Administrative Agent and prior to the
occurrence and continuation of an Event of Default, the
consent of the Borrower, which consents shall not be
unreasonably withheld;
(ii) Any Person purchasing a participation or an
assignment of any portion of the Loans from any Bank shall be
required to represent and warrant that its purchase shall not
constitute a "prohibited transaction" (as defined in Section
4.1(m) hereof);
(iii) The Borrower, the Banks, and the Administrative
Agent agree that assignments permitted hereunder (including
the assignment of any Advance or portion thereof) may be made
with all voting rights, and shall be made pursuant to an
Assignment and Assumption Agreement substantially in the form
of Exhibit O attached hereto. An administrative fee of $3,500
shall be payable to the Administrative Agent by the assigning
Bank at the time of any assignment under this Section 11.5(c);
(iv) No participation agreement shall confer any
rights under this Agreement or any other Loan Document to any
purchaser thereof, or relieve any issuing Bank from any of its
obligations under this Agreement, and all actions hereunder
shall be conducted as if no such participation had been
granted; provided, however, that any participation agreement
may confer on the participant the right to approve or
disapprove decreases in the interest rate, increases in the
principal amount of the Loans participated in by such
participant, decreases in fees, extensions of the
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Maturity Date or other principal payment date for the Loans or
of the scheduled reduction of the Commitment and releases of
Collateral;
(v) Each Bank agrees to provide the Administrative
Agent and the Borrower with prompt written notice of any
issuance of participations in or assignments of its interests
hereunder;
(vi) No assignment, participation or other transfer
of any rights hereunder or under the Notes shall be effected
that would result in any interest requiring registration under
the Securities Act of 1933, as amended, or qualification under
any state securities law;
(vii) No such assignment may be made to any bank or
other financial institution (x) with respect to which a
receiver or conservator (including, without limitation, the
Federal Deposit Insurance Corporation, the Resolution Trust
Company or the Office of Thrift Supervision) has been
appointed or (y) that is not "adequately capitalized" (as such
term is defined in Section 131(b)(1)(B) of the Federal Deposit
Insurance Corporation Improvement Act as in effect on the
Agreement Date); and
(viii) If applicable, each Bank shall, and shall
cause each of its assignees to, provide to the Administrative
Agent on or prior to the effective date of any assignment an
appropriate Internal Revenue Service form as required by
Applicable Law supporting such Bank's or assignee's position
that no withholding by the Borrower or the Administrative
Agent for U.S. income tax payable by such Bank or assignee in
respect of amounts received by it hereunder is required. For
purposes of this Agreement, an appropriate Internal Revenue
Service form shall mean Form 1001 (Ownership Exemption or
Reduced Rate Certificate of the U.S. Department of Treasury),
or Form 4224 (Exemption from Withholding of Tax on Income
Effectively Connected with the Conduct of a Trade or Business
in the United States), or any successor or related forms
adopted by the relevant U.S. taxing authorities.
(d) Except as specifically set forth in Section 11.5(b) or (c)
hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(e) In the case of any participation, all amounts payable by
the Borrower under the Loan Documents shall be calculated and made in the manner
and to the parties hereto as if no such participation had been sold.
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(f) The provisions of this Section 11.5 shall not apply to
any purchase of participations among the Banks pursuant to Section 2.11 hereof.
Section 11.6 Accounting Principles. All references in this Agreement
to GAAP shall be to such principles as in effect from time to time. All
accounting terms used herein without definition shall be used as defined under
GAAP. All references to the financial statements of the Borrower and to its
Operating Cash Flow, Total Debt, Fixed Charges, Pro Forma Debt Service, and
other such terms shall be deemed to refer to such items of the Borrower and its
Restricted Subsidiaries, on a fully consolidated basis. The Borrower shall
deliver to the Banks at the same time as the delivery of any quarterly or annual
financial statements required pursuant to Section 6.1 or 6.2 hereof, as
applicable, (a) a description in reasonable detail of any material variation
between the application of GAAP employed in the preparation of such statements
and the application of GAAP employed in the preparation of the next preceding
quarterly or annual financial statements, as applicable, and (b) reasonable
estimates of the differences between such statements arising as a consequence
thereof. If, within thirty (30) days after the delivery of the quarterly or
annual financial statements referred to in the immediately preceding sentence,
the Majority Banks shall object in writing to the Borrower's determining
compliance hereunder on such basis, (1) calculations for the purposes of
determining compliance hereunder shall be made on a basis consistent with those
used in the preparation of the latest financial statements as to which such
objection shall not have been made, or (2) if requested by the Borrower, the
Majority Banks will negotiate in good faith to amend the covenants herein to
give effect to the changes in GAAP in a manner consistent with this Agreement
(and so long as the Borrower complies in good faith with the provisions of this
Section 11.6, no Default or Event of Default shall occur hereunder solely as a
result of such changes in GAAP).
Section 11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State of
New York applicable to agreements made and to be performed in New York. If any
action or proceeding shall be brought by the Administrative Agent or any Bank
hereunder or under any other Loan Document in order to enforce any right or
remedy under this Agreement or under any Note or any other Loan Document, the
Borrower hereby consents and will, and the Borrower will cause each Restricted
Subsidiary to, submit to the jurisdiction of any state or federal court of
competent jurisdiction sitting within the area comprising the Southern District
of New York on the date of this Agreement. The Borrower, for itself and on
behalf of its Restricted Subsidiaries, hereby agrees that, to the extent
permitted by Applicable Law, service of the summons and complaint and all other
process which may be served in any such suit, action or proceeding may be
effected by mailing by registered mail a copy of such process to the
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offices of the Borrower at the address given in Section 11.1 hereof and that
personal service of process shall not be required. Nothing herein shall be
construed to prohibit service of process by any other method permitted by law,
or the bringing of any suit, action or proceeding in any other jurisdiction. The
Borrower agrees that final judgment in such suit, action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable
hereunder or under the Notes exceed the maximum rate of interest allowed by
Applicable Law, and in the event any such payment is inadvertently made by the
Borrower or inadvertently received by the Administrative Agent or any Bank, then
such excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the Administrative Agent or such Bank, in writing, that it elects
to have such excess sum returned forthwith. It is the express intent hereof that
the Borrower not pay and the Administrative Agent and the Banks not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Banks of the Base Rate
and the LIBOR as reference rates for the determination of interest on the Loans,
the Banks shall be under no obligation to obtain funds from any particular
source in order to charge interest to the Borrower at interest rates related to
such reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents
and the headings of the various subdivisions used in this Agreement are for
convenience only and shall not in any way modify or amend any of the terms or
provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any
Loan Document nor any term hereof or thereof may be amended orally, nor may any
provision hereof or thereof be waived orally but only by an instrument in
writing signed by or at the direction of the Majority Banks and, in the case of
an amendment, by the Borrower, except that in the event of (a) any increase in
the amount of any Bank's portion of the Commitment, (b) any delay or extension
in the terms of repayment of the Loans provided in Section 2.5 or 2.7 hereof,
(c) any reduction in principal, interest or fees due hereunder or postponement
of the payment thereof without a corresponding payment of such principal,
interest or fee
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amount by the Borrower, (d) any release of any portion of the Collateral for the
Loans, except under Section 7.4 hereof, (e) any waiver of any Default due to the
failure by the Borrower to pay any sum due to any of the Banks hereunder, (f)
any release of any Guaranty of all or any portion of the Obligations, except in
connection with a merger, sale or other disposition otherwise permitted
hereunder (in which case, such release shall require no further approval by the
Banks), (g) any amendment to the pro rata treatment of the Banks set forth in
Section 2.11 hereof, or (h) any amendment of this Section 11.12, of the
definition of Majority Banks, or of any Section herein to the extent that such
Section requires action by all Banks, any amendment or waiver or consent may be
made only by an instrument in writing signed by each of the Banks and, in the
case of an amendment, by the Borrower. Any amendment to any provision hereunder
governing the rights, obligations, or liabilities of the Administrative Agent in
its capacity as such, may be made only by an instrument in writing signed by
such affected Person and by each of the Banks.
Section 11.13 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement and the other documents described or
contemplated herein will embody the entire agreement and understanding among the
parties hereto and thereto and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder
or under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Bank to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this
Agreement refers to any action taken or to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (a) shall be deemed to have been
relied upon by the Administrative Agent and each of the Banks notwithstanding
any investigation heretofore or hereafter made by them, and (b) shall survive
the execution and delivery of the Notes and shall continue in full force and
effect so long as any Note is outstanding and unpaid. Any right to
indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.10, 2.12, 5.12, 10.3 and 11.2 hereof, shall survive the termination
of this Agreement and the payment and performance of all Obligations.
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Section 11.17 Senior Debt. The Obligations are secured by the
Security Documents and are intended by the parties hereto to be in parity with
the Interest Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrower.
Section 11.18 Obligations. The obligations of the Administrative
Agent and each of the Banks hereunder are several, not joint.
Section 11.19 Confidentiality. The Banks shall hold all non-public,
proprietary or confidential information (which has been identified as such by
the Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices;
provided, however, the Banks may make disclosure of any such information to
their examiners, Affiliates, outside auditors, counsel, consultants, appraisers
and other professional advisors in connection with this Agreement or as
reasonably required by any proposed syndicate member or any proposed transferee
or participant in connection with the contemplated transfer of any Note or
participation therein or as required or requested by any governmental authority
or representative thereof or in connection with the enforcement hereof or of any
Loan Document or related document or pursuant to legal process or with respect
to any litigation between or among the Borrower and any of the Banks, so long as
the person (other than any examiners) receiving such information is advised of
the provisions of this Section 11.19 and agrees to be bound thereby. In no event
shall any Bank be obligated or required to return any materials furnished to it
by the Borrower. The foregoing provisions shall not apply to a Bank with respect
to information that (i) is or becomes generally available to the public (other
than through such Bank), (ii) is already in the possession of such Bank on a
nonconfidential basis, or (iii) comes into the possession of such Bank in a
manner not known to such Bank to involve a breach of a duty of confidentiality
owing to the Borrower.
ARTICLE 12 Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND ON
BEHALF OF ITS RESTRICTED SUBSIDIARIES, AND THE ADMINISTRATIVE AGENT AND THE
BANKS, HEREBY AGREE, TO THE EXTENT PERMITTED BY LAW, TO WAIVE AND HEREBY WAIVE
THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY
TYPE IN WHICH THE BORROWER, ANY OF THE BORROWER'S RESTRICTED SUBSIDIARIES, ANY
OF THE BANKS, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY
OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE
RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 12.1. EXCEPT AS PROHIBITED BY
LAW, EACH
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PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. EACH PARTY TO THIS AGREEMENT (A) CERTIFIES THAT NEITHER ANY
REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY BANK
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND
(B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY
DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO
EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER
PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: AMERICAN TOWER SYSTEMS, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Its: Chief Financial Officer
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Vice President
BANKS: TORONTO DOMINION (TEXAS), INC., as a
Bank
Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Its: Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE PARIBAS, as a Bank
Address:
The Equitable Tower By:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Its: Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Director
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BARCLAYS BANK PLC, as a Bank
Address:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ By:
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Its: Associate Director
BANK OF MONTREAL, CHICAGO BRANCH,
as a Bank
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Its: Director
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE CHASE MANHATTAN BANK, as a Bank
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
New York, New York 10017 Its: Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
FLEET NATIONAL BANK, as a Bank
Address:
MA/OF/DO3D By:
One Federal Street Its: Vice President
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
GE CAPITAL CORPORATION, as a Bank
Address:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Stamford, Connecticut 06927 Its: Manager, Operations
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as a Bank
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ By:
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Its: Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT SUISSE FIRST BOSTON, as a Bank
Address:
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
New York, New York 10010 Its: Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Director
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, as a Bank
Address:
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Its: Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
UNIOBANK OF CALIFORNIA, N.A.,
as a Bank
Address:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Its: Assistant Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA, as a Bank
Address:
One Liberty Plaza By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
New York, New York 10006 Its: Authorized Signatory
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
CREDIT LYONNAIS NEW YORK BRANCH,
as a Bank
Address:
1301 Avenue of the Americas By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
18th Floor Its: Vice President
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
THE SUMITOMO BANK, LIMITED, acting
through its Chicago Branch, as a Bank
Address:
▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ By:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Its: Vice President & Manager
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Lending Office Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Its: Executive Officer
BANK OF SCOTLAND, as a Bank
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇ Tat
New York, New York 10017 Its: Vice President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ COMMERCIAL PAPER INC., as a Bank
Address:
3 World Financial Center, 10th Floor By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
New York, New York 10285 Its: Authorized Signatory
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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