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EXHIBIT 10.3
Conformed Copy
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ATC TOWER CORP.
CREDIT AGREEMENT
Dated as of October 11, 1996
THE FIRST NATIONAL BANK OF BOSTON, Agent
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TABLE OF CONTENTS
Page
1. Definitions; Certain Rules of Construction . . . . . . . . . . . . . 1
2. The Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.1. Revolving Credit . . . . . . . . . . . . . . . . . . . . . . 28
2.1.1. Revolving Loan . . . . . . . . . . . . . . . . . . 28
2.1.2. Maximum Amount of Revolving Credit . . . . . . . . 28
2.1.3. Borrowing Requests . . . . . . . . . . . . . . . . 30
2.1.4. Revolving Notes . . . . . . . . . . . . . . . . . . 30
2.2. Term Credit . . . . . . . . . . . . . . . . . . . . . . . . 30
2.2.1. Term Loan . . . . . . . . . . . . . . . . . . . . . 30
2.2.2. Term Notes . . . . . . . . . . . . . . . . . . . . 31
2.3. Letters of Credit . . . . . . . . . . . . . . . . . . . . . 31
2.3.1. Issuance of Letters of Credit . . . . . . . . . . . 31
2.3.2. Requests for Letters of Credit . . . . . . . . . . 31
2.3.3. Form and Expiration of Letters of Credit . . . . . 31
2.3.4. Lenders' Participation in Letters of Credit . . . . 32
2.3.5. Presentation . . . . . . . . . . . . . . . . . . . 32
2.3.6. Payment of Drafts . . . . . . . . . . . . . . . . . 32
2.3.7. Uniform Customs and Practice . . . . . . . . . . . 32
2.3.8. Subrogation . . . . . . . . . . . . . . . . . . . . 34
2.3.9. Modification, Consent, etc. . . . . . . . . . . . . 34
2.4. Application of Proceeds . . . . . . . . . . . . . . . . . . 34
2.4.1. Revolving Loan . . . . . . . . . . . . . . . . . . 34
2.4.2. Term Loan . . . . . . . . . . . . . . . . . . . . . 34
2.4.3. Letters of Credit . . . . . . . . . . . . . . . . . 35
2.4.4. Specifically Prohibited Applications . . . . . . . 35
2.5. Nature of Obligations of Lenders to Make Extensions of
Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3. Interest; Eurodollar Pricing Options; Fees . . . . . . . . . . . . . 35
3.1. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.2. Eurodollar Pricing Options . . . . . . . . . . . . . . . . . 36
3.2.1. Election of Eurodollar Pricing Options . . . . . . 36
3.2.2. Notice to Lenders and Company . . . . . . . . . . . 36
3.2.3. Selection of Eurodollar Interest Periods . . . . . 37
3.2.4. Additional Interest . . . . . . . . . . . . . . . . 37
3.2.5. Violation of Legal Requirements . . . . . . . . . . 38
3.2.6. Funding Procedure . . . . . . . . . . . . . . . . . 38
3.3. Commitment Fees . . . . . . . . . . . . . . . . . . . . . . 38
3.4. Letter of Credit Fees . . . . . . . . . . . . . . . . . . . 39
3.5. Changes in Circumstances; Yield Protection . . . . . . . . . 39
3.5.1. Reserve Requirements, etc . . . . . . . . . . . . . 39
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3.5.2. Taxes . . . . . . . . . . . . . . . . . . . . . . . 39
3.5.3. Capital Adequacy . . . . . . . . . . . . . . . . . 40
3.5.4. Regulatory Changes . . . . . . . . . . . . . . . . 40
3.5.5. Compensation Claims . . . . . . . . . . . . . . . . 40
3.5.6. Mitigation . . . . . . . . . . . . . . . . . . . . 41
3.6. Computations of Interest and Fees . . . . . . . . . . . . . 41
4. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.1. Payment at Maturity . . . . . . . . . . . . . . . . . . . . 41
4.2. Scheduled Required Prepayments . . . . . . . . . . . . . . . 41
4.3. Contingent Required Prepayments . . . . . . . . . . . . . . 42
4.3.1. Excess Credit Exposure . . . . . . . . . . . . . . 42
4.3.2. Excess Cash Flow . . . . . . . . . . . . . . . . . 42
4.3.3. Net Asset Sale Proceeds . . . . . . . . . . . . . . 42
4.3.4. Net Debt Proceeds . . . . . . . . . . . . . . . . . 43
4.3.5. Net Equity Proceeds . . . . . . . . . . . . . . . . 43
4.4. Voluntary Prepayments . . . . . . . . . . . . . . . . . . . 43
4.5. Letters of Credit . . . . . . . . . . . . . . . . . . . . . 43
4.6. Reborrowing; Application of Payments, etc. . . . . . . . . . 44
4.6.1. Reborrowing . . . . . . . . . . . . . . . . . . . . 44
4.6.2. Order of Application . . . . . . . . . . . . . . . 44
4.6.3. Payment with Accrued Interest, etc . . . . . . . . 44
4.6.4. Payments for Lenders . . . . . . . . . . . . . . . 44
5. Conditions to Extending Credit . . . . . . . . . . . . . . . . . . . 44
5.1. Conditions on Initial Closing Date . . . . . . . . . . . . . 45
5.1.1. Notes . . . . . . . . . . . . . . . . . . . . . . . 45
5.1.2. Payment of Fees . . . . . . . . . . . . . . . . . . 45
5.1.3. Legal Opinions . . . . . . . . . . . . . . . . . . 45
5.1.4. Security Agreement . . . . . . . . . . . . . . . . 45
5.1.5. Perfection of Security . . . . . . . . . . . . . . 45
5.1.6. Master Subordination Agreement . . . . . . . . . . 46
5.1.7. Guarantee Agreement. . . . . . . . . . . . . . . . 46
5.1.8. Parent Pledge Agreement . . . . . . . . . . . . . . 46
5.1.9. Prime Acquisition . . . . . . . . . . . . . . . . . 46
5.1.10. Solvency, etc. . . . . . . . . . . . . . . . . . . 47
5.1.13. Proper Proceedings . . . . . . . . . . . . . . . . 47
5.1.14. General . . . . . . . . . . . . . . . . . . . . . 48
5.2. Conditions to Each Extension of Credit . . . . . . . . . . . 48
5.2.1. Officer's Certificate . . . . . . . . . . . . . . . 48
5.2.2. Legality, etc . . . . . . . . . . . . . . . . . . . 48
6. General Covenants . . . . . . . . . . . . . . . . . . . . . . . . . 48
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6.1. Taxes and Other Charges; Accounts Payable. . . . . . . . . . 48
6.1.1. Taxes and Other Charges . . . . . . . . . . . . . . 49
6.1.2. Accounts Payable . . . . . . . . . . . . . . . . . 49
6.2. Conduct of Business, etc. . . . . . . . . . . . . . . . . . 49
6.2.1. Types of Business . . . . . . . . . . . . . . . . . 49
6.2.2. Maintenance of Properties. . . . . . . . . . . . . 49
6.2.3. Statutory Compliance . . . . . . . . . . . . . . . 50
6.2.4. Compliance with Material Agreements . . . . . . . . 50
6.3. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.3.1. Property Insurance . . . . . . . . . . . . . . . . 50
6.3.2. Liability Insurance . . . . . . . . . . . . . . . . 50
6.4. Financial Statements and Reports . . . . . . . . . . . . . . 51
6.4.1. Annual Reports . . . . . . . . . . . . . . . . . . 51
6.4.2. Quarterly Reports . . . . . . . . . . . . . . . . . 52
6.4.3. Monthly Reports. . . . . . . . . . . . . . . . . . 53
6.4.4. Future Towers . . . . . . . . . . . . . . . . . . . 53
6.4.5. Other Reports . . . . . . . . . . . . . . . . . . . 53
6.4.6. Notice of Litigation, Defaults, etc . . . . . . . . 54
6.4.7. ERISA Reports . . . . . . . . . . . . . . . . . . . 54
6.4.8. Other Information . . . . . . . . . . . . . . . . . 55
6.5. Certain Financial Tests . . . . . . . . . . . . . . . . . . 55
6.5.1. Consolidated EBITDA to Consolidated Interest
Expense . . . . . . . . . . . . . . . . . . . . . . 55
6.5.2. Consolidated Annualized EBITDA to Consolidated Pro
Forma Debt Service . . . . . . . . . . . . . . . . 55
6.5.3. Consolidated EBITDA to Consolidated Fixed
Charges . . . . . . . . . . . . . . . . . . . . . . 56
6.5.4. Consolidated Senior Debt to Consolidated
Annualized EBITDA . . . . . . . . . . . . . . . . . 56
6.5.5. Consolidated Total Debt to Consolidated
Annualized EBITDA . . . . . . . . . . . . . . . . . 56
6.5.6. Tower Construction Debt . . . . . . . . . . . . . . 57
6.6. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 57
6.7. Guarantees; Letters of Credit . . . . . . . . . . . . . . . 59
6.8. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.9. Investments and Acquisitions . . . . . . . . . . . . . . . . 60
6.10. Distributions . . . . . . . . . . . . . . . . . . . . . . . 61
6.11. Asset Dispositions and Mergers . . . . . . . . . . . . . . . 62
6.12. Issuance of Stock by Subsidiaries; Subsidiary
Distributions . . . . . . . . . . . . . . . . . . . . . . . 63
6.12.1. Issuance of Stock by Subsidiaries . . . . . . . . 63
6.12.2. No Restrictions on Subsidiary Distributions . . . 63
6.13. Voluntary Prepayments of Other Indebtedness . . . . . . . . 63
6.14. Derivative Contracts . . . . . . . . . . . . . . . . . . . . 64
6.15. Negative Pledge Clauses . . . . . . . . . . . . . . . . . . 64
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6.16. ERISA, etc. . . . . . . . . . . . . . . . . . . . . . . . . 64
6.17. Transactions with Affiliates . . . . . . . . . . . . . . . . 64
6.18. Interest Rate Protection . . . . . . . . . . . . . . . . . . 64
6.19. Environmental Laws . . . . . . . . . . . . . . . . . . . . . 65
6.19.1. Compliance with Law and Permits . . . . . . . . . 65
6.19.2. Notice of Claims, etc . . . . . . . . . . . . . . 65
7. Representations and Warranties . . . . . . . . . . . . . . . . . . . 65
7.1. Organization and Business . . . . . . . . . . . . . . . . . 65
7.1.1. The Company . . . . . . . . . . . . . . . . . . . . 65
7.1.2. Subsidiaries . . . . . . . . . . . . . . . . . . . 66
7.1.3. Qualification . . . . . . . . . . . . . . . . . . . 66
7.1.4. Capitalization . . . . . . . . . . . . . . . . . . 66
7.2. Financial Statements and Other Information; Material
Agreements . . . . . . . . . . . . . . . . . . . . . . . . 66
7.2.1. Financial Statements and Other Information . . . . 66
7.2.2. Material Agreements . . . . . . . . . . . . . . . . 68
7.3. Agreements Relating to Financing Debt, Investments, etc. . . 68
7.4. Changes in Condition . . . . . . . . . . . . . . . . . . . . 68
7.5. Title to Assets . . . . . . . . . . . . . . . . . . . . . . 68
7.6. Operations in Conformity With Law, etc . . . . . . . . . . . 68
7.7. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.8. Authorization and Enforceability . . . . . . . . . . . . . . 69
7.9. No Legal Obstacle to Agreements . . . . . . . . . . . . . . 69
7.10. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . 70
7.11. Licenses, etc. . . . . . . . . . . . . . . . . . . . . . . . 70
7.12. Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . 71
7.13. Certain Business Representations . . . . . . . . . . . . . . 71
7.13.1. Labor Relations . . . . . . . . . . . . . . . . . 71
7.13.2. Antitrust . . . . . . . . . . . . . . . . . . . . 71
7.13.3. Tower Sites . . . . . . . . . . . . . . . . . . . 71
7.13.4. Real Property Leases . . . . . . . . . . . . . . . 71
7.13.5. Operation and Maintenance of Equipment . . . . . . 72
7.13.6. FCC and FAA Matters . . . . . . . . . . . . . . . 72
7.14. Environmental Regulations . . . . . . . . . . . . . . . . . 73
7.14.1. Environmental Compliance . . . . . . . . . . . . . 73
7.14.2. Environmental Litigation . . . . . . . . . . . . . 73
7.14.3. Hazardous Material . . . . . . . . . . . . . . . . 73
7.14.4. Environmental Condition of Properties . . . . . . 74
7.15. Pension Plans . . . . . . . . . . . . . . . . . . . . . . . 74
7.16. Prime Acquisition Agreement, etc . . . . . . . . . . . . . . 74
7.17. Foreign Trade Regulations; Government Regulation;
Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . 74
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7.17.1. Foreign Trade Regulations . . . . . . . . . . . . 74
7.17.2. Government Regulation . . . . . . . . . . . . . . 75
7.17.3. Margin Stock . . . . . . . . . . . . . . . . . . . 75
7.18. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . 75
8. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
8.1. Events of Default . . . . . . . . . . . . . . . . . . . . . 75
8.1.1. Payment . . . . . . . . . . . . . . . . . . . . . . 75
8.1.2. Specified Covenants . . . . . . . . . . . . . . . . 75
8.1.3. Other Covenants . . . . . . . . . . . . . . . . . . 75
8.1.4. Representations and Warranties . . . . . . . . . . 76
8.1.5. Cross Default, etc. . . . . . . . . . . . . . . . . 76
8.1.6. Ownership; Liquidation; etc. . . . . . . . . . . . 76
8.1.7. Enforceability, etc. . . . . . . . . . . . . . . . 77
8.1.8. Judgments . . . . . . . . . . . . . . . . . . . . . 77
8.1.9. ERISA . . . . . . . . . . . . . . . . . . . . . . . 77
8.1.10. Bankruptcy, etc. . . . . . . . . . . . . . . . . . 78
8.2. Certain Actions Following an Event of Default . . . . . . . 78
8.2.1. Terminate Obligation to Extend Credit . . . . . . . 78
8.2.2. Specific Performance; Exercise of Rights . . . . . 79
8.2.3. Acceleration . . . . . . . . . . . . . . . . . . . 79
8.2.4. Enforcement of Payment; Credit Security; Setoff . . 79
8.2.5. Cumulative Remedies . . . . . . . . . . . . . . . . 79
8.3. Annulment of Defaults . . . . . . . . . . . . . . . . . . . 79
8.4. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . 80
9. Expenses; Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 80
9.1. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 80
9.2. General Indemnity . . . . . . . . . . . . . . . . . . . . . 81
9.3. Indemnity With Respect to Letters of Credit . . . . . . . . 81
10. Operations; Managing Agent . . . . . . . . . . . . . . . . . . . . . 82
10.1. Interests in Credits . . . . . . . . . . . . . . . . . . . . 82
10.2. Agents' Authority to Act, etc . . . . . . . . . . . . . . . 82
10.3. Company to Pay Managing Agent, etc . . . . . . . . . . . . . 82
10.4. Lender Operations for Advances, Letters of Credit, etc . . . 82
10.4.1. Advances . . . . . . . . . . . . . . . . . . . . . 82
10.4.2. Letters of Credit . . . . . . . . . . . . . . . . 83
10.4.3. Managing Agent to Allocate Payments, etc. . . . . 83
10.4.4. Delinquent Lenders; Nonperforming Lenders . . . . 83
10.5. Sharing of Payments, etc. . . . . . . . . . . . . . . . . . 84
10.6. Amendments, Consents, Waivers, etc . . . . . . . . . . . . . 85
10.7. Agent's Resignation . . . . . . . . . . . . . . . . . . . . 86
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10.8. Concerning the Agents . . . . . . . . . . . . . . . 86
10.8.1. Action in Good Faith, etc . . . . . . . . . . . . 86
10.8.2. No Implied Duties, etc. . . . . . . . . . . . . . 87
10.8.3. Validity, etc. . . . . . . . . . . . . . . . . . . 87
10.8.4. Compliance . . . . . . . . . . . . . . . . . . . . 87
10.8.5. Employment of Agents and Counsel . . . . . . . . . 87
10.8.6. Reliance on Documents and Counsel . . . . . . . . 88
10.8.7. Agent's Reimbursement . . . . . . . . . . . . . . . 88
10.9. Rights as a Lender . . . . . . . . . . . . . . . . . . . . . 88
10.10. Independent Credit Decision . . . . . . . . . . . . . . . . 88
10.11. Indemnification . . . . . . . . . . . . . . . . . . . . . . 89
11. Successors and Assigns; Lender Assignments and Participations . . . 89
11.1. Assignments by Lenders . . . . . . . . . . . . . . . . . . . 89
11.1.1. Assignees and Assignment Procedures . . . . . . . 90
11.1.2. Terms of Assignment and Acceptance . . . . . . . . 91
11.1.3. Register . . . . . . . . . . . . . . . . . . . . . 91
11.1.4. Acceptance of Assignment and Assumption . . . . . 92
11.1.5. Federal Reserve Bank . . . . . . . . . . . . . . . 92
11.1.6. Further Assurances . . . . . . . . . . . . . . . . 92
11.2. Credit Participants . . . . . . . . . . . . . . . . . . . . 92
11.3. Replacement of Lender . . . . . . . . . . . . . . . . . . . 93
12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 94
13. Foreign Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . 95
14. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
15. Course of Dealing; Amendments and Waivers . . . . . . . . . . . . . 96
16. Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
17. Venue; Service of Process . . . . . . . . . . . . . . . . . . . . . 97
18. Maximum Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 97
18.1. No Interest in Excess of Maximum Interest . . . . . . . . . 97
18.2. Incorporation by Reference . . . . . . . . . . . . . . . . . 98
18.3. Changes in Usury Laws . . . . . . . . . . . . . . . . . . . 98
19. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . 99
20. DTPA WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
21. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
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ATC TOWER CORP.
CREDIT AGREEMENT
This Agreement, dated as of October 11, 1996, is among ATC Tower
Corp., a Delaware corporation, the Subsidiaries of ATC Tower Corp. from time to
time party hereto, the Lenders from time to time party hereto, The First
National Bank of Boston, both in its capacity as a Lender and in its capacity
as Managing Agent for itself and the other Lenders, and ▇▇▇▇▇ Fargo Bank
(Texas) National Association, both in its capacity as a Lender and in its
capacity as Collateral Agent for itself and the other Lenders. The parties
agree as follows:
Recitals: This Agreement amends and restates the Credit Agreement
dated as of October 12, 1994, as amended and restated as of December 28, 1995,
as in effect on the date hereof immediately prior to giving effect to this
Agreement, among the Company (as successor to ▇▇▇▇▇-▇▇▇▇▇ Corp.), ▇▇▇▇▇ Fargo
Bank (Texas) National Association (as successor to First Interstate Bank of
Texas, N.A.), as agent, and certain other lenders (the "Prior Credit
Agreement"). Pursuant to this Agreement, the Lenders are extending to the
Company a $23,000,000 revolving credit facility, including a $1,000,000
sub-allotment for Letters of Credit, and a $37,000,000 term loan facility. All
the credit facilities mature on October 10, 2003. These credit facilities are
guaranteed by the Parent, ATC Holdings and the Company's Subsidiaries and are
secured by liens on substantially all the assets of the Company and its
Subsidiaries, including Towers that contribute at least 80% of Consolidated
Revenues. The proceeds of these credit facilities may be used to acquire Towers
from Prime on the Initial Closing Date, to acquire and construct additional
Towers and for general corporate purposes as provided herein.
1. Definitions; Certain Rules of Construction. Certain capitalized
terms are used in this Agreement and in the other Credit Documents with the
specific meanings defined below in this Section 1. Except as otherwise
explicitly specified to the contrary or unless the context clearly requires
otherwise, (a) the capitalized term "Section" refers to sections of this
Agreement, (b) the capitalized term "Exhibit" refers to exhibits to this
Agreement, (c) references to a particular Section include all subsections
thereof, (d) the word "including" shall be construed as "including without
limitation", (e) accounting terms not otherwise defined herein have the meaning
provided under GAAP, (f) references to a particular statute or regulation
include all rules and regulations thereunder and any successor statute,
regulation or rules, in each case as from time to time in effect and (g)
references to a particular Person include such Person's successors and assigns
to the extent not prohibited by this Agreement and the other Credit Documents.
References to "the date hereof" mean the date first set forth above.
1.1. "Accumulated Benefit Obligations" means the actuarial
present value of the accumulated benefit obligations under any Plan, calculated
in accordance with Statement No. 87 of the Financial Accounting Standards
Board.
1.2. "Affected Lender" is defined in Section 11.3.
9
1.3. "Affiliate" means, with respect to the Company (or any other
specified Person), any other Person directly or indirectly controlling,
controlled by or under direct or indirect common control with the Company (or
such specified Person), and shall include (a) any officer or director or
general partner of the Company (or such specified Person) and (b) any Person of
which the Company (or such specified Person) or any Affiliate (as defined in
clause (a) above) of the Company (or such specified Person) shall, directly or
indirectly, beneficially own either (i) at least 10% of the outstanding equity
securities having the general power to vote or (ii) at least 10% of all equity
interests.
1.4. "Agent" means each of the Managing Agent and the Collateral
Agent.
1.5. "Agreement" means this Credit Agreement as from time to time
amended, modified and in effect.
1.6. "Applicable Margin" means (a) through December 31, 1996, the
highest applicable percentage rate set forth below and (b) during any month
thereafter, the percentage in the table below set opposite the ratio which (i)
Consolidated Total Debt on the last day of the most recent fiscal quarter for
which financial statements have been (or are required to have been) furnished
to the Lenders in accordance with Sections 6.4.1 or 6.4.2 prior to the
beginning of such month bore to (ii) Consolidated Annualized EBITDA for the
most recent fiscal quarter ended on the day referred to in clause (i) above:
Ratio of Consolidated Total Debt Base Rate Eurodollar
to Consolidated Annualized EBITDA Applicable Margin Applicable Margin
--------------------------------- ----------------- -----------------
Greater than or equal to 500% 1 .75% 2.75%
Less than 500% but greater than or
equal to 450% 1 .50% 2.50%
Less than 450% but greater than or
equal to 400% 1 .00% 2.00%
Less than 400% but greater than or
equal to 350% 0 .50% 1.50%
Less than 350% 0 .25% 1.25%
1.7. "Applicable Rate" means, at any date, the sum of:
(a) (i) with respect to each portion of the Loan
subject to a Eurodollar Pricing Option, the sum of the
Applicable Margin plus the Eurodollar Rate
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with respect to such Eurodollar Pricing Option;
(ii) with respect to each other portion of the
Loan, the sum of the Applicable Margin plus the Base Rate;
plus (b) an additional 2% effective on the day the Managing
Agent notifies the Company that the interest rates hereunder
are increasing as a result of the occurrence and continuance
of an Event of Default until the earlier of such time as (i)
such Event of Default is no longer continuing or (ii) such
Event of Default is deemed no longer to exist, in each case
pursuant to Section 8.3;
provided, however, that (A) in no event shall the Applicable Rate exceed the
Maximum Rate, and (B) if at any time the Applicable Rate as described above
without giving effect to the foregoing clause (A) shall exceed the Maximum Rate
and thereafter shall become less than the Maximum Rate, the Applicable Rate
shall be the Maximum Rate until the Lenders shall have received the amount of
interest that the Lenders would have received on the Credit Obligations if the
Applicable Rate had not been limited to the Maximum Rate during the period of
time the Applicable Rate as described above without giving effect to the
foregoing clause (A) exceeded the Maximum Rate.
1.8. "Assignee" is defined in Section 11.1.1.
1.9. "Assignment and Acceptance" is defined in Section 11.1.1.
1.10. "Assignment of Leases" means a collateral assignment of
Leases, leasehold mortgage or leasehold deeds of trust executed by the Company
on October 12, 1994 and subsequently executed or to be executed in respect of
Towers in favor of the Collateral Agent or the Managing Agent for the benefit
of the Lenders, in form and substance satisfactory to the Required Lenders, in
each case as the same may be renewed, modified, extended, supplemented or
rearranged, at any time and from time to time.
1.11. "Assignment of License Agreements" means a collateral
assignment of each License Agreement executed by the Company on October 12,
1994 in favor of the Collateral Agent or the Managing Agent for the benefit of
the Lenders, in form and substance satisfactory to the Required Lenders, as the
same may be renewed, modified, extended, supplemented or rearranged, at any
time and from time to time.
1.12. "ATC Holdings" means ATC Holdings Corp., a Delaware
corporation.
1.13. "Banc One" means Banc One Capital Partners II, Limited
Liability Company, an Ohio limited liability company (the successor to Banc One
Capital Partners II, Limited Partnership).
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11
1.14. "Bank of Boston" means The First National Bank of Boston.
1.15. "Banking Day" means any day other than Saturday, Sunday or a
day on which banks in Boston, Massachusetts are authorized or required by law
or other governmental action to close and, if such term is used with reference
to a Eurodollar Pricing Option, any day on which dealings are effected in the
Eurodollars in question by first-class banks in the inter-bank Eurodollar
markets in New York, New York.
1.16. "Bankruptcy Code" means Title 11 of the United States Code.
1.17. "Bankruptcy Default" means an Event of Default referred to
in Section 8.1.10.
1.18. "Base Rate" means, on any date, the greater of (a) the rate
of interest announced by Bank of Boston at the Boston Office as its Base Rate
or (b) the sum of 1/2% plus the Federal Funds Rate.
1.19. "Boston Office" means the principal banking office of Bank
of Boston in Boston, Massachusetts.
1.20. "▇▇▇▇▇ Subordinated Debt" means the Company's 10 1/2%
Subordinated Indebtedness in the aggregate original principal amount of
$3,000,000 due October 15, 2002, payable to ▇▇▇ ▇▇▇▇▇ Enterprises and
subordinated to the Credit Obligations pursuant to the ▇▇▇▇▇ Subordination
Agreement.
1.21. "By-laws" means all written by-laws, rules, regulations and
all other documents relating to the management, governance or internal
regulation of any Person other than an individual, or interpretive of the
Charter of such Person, all as from time to time in effect.
1.22. "Capital Expenditures" means, for any period, amounts added
or required to be added to the property, plant and equipment or other fixed
assets account on the Consolidated balance sheet of the Company and its
Subsidiaries, prepared in accordance with GAAP, in respect of (a) the
acquisition, construction, improvement or replacement of land, buildings,
machinery, equipment, leaseholds and any other real or personal property, (b)
to the extent not included in clause (a) above, materials, contract labor and
direct labor relating thereto (excluding amounts properly expensed as repairs
and maintenance in accordance with GAAP) and (c) software development costs to
the extent not expensed; provided, however, that in no event will Capital
Expenditures include Tower construction and acquisition costs to the extent not
prohibited by Section 6.9.
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1.23. "Capitalized Lease" means any lease which is required to be
capitalized on the balance sheet of the lessee in accordance with GAAP,
including Statement Nos. 13 and 98 of the Financial Accounting Standards Board.
1.24. "Capitalized Lease Obligations" means the amount of the
liability reflecting the aggregate discounted amount of future payments under
all Capitalized Leases calculated in accordance with GAAP, including Statement
Nos. 13 and 98 of the Financial Accounting Standards Board.
1.25. "Cash Equivalents" means:
(a) negotiable certificates of deposit, time deposits
(including sweep accounts), demand deposits and bankers' acceptances
having a maturity of 180 days or less and issued by any United States
financial institution having capital and surplus and undivided profits
aggregating at least $300,000,000 or issued by any Lender;
(b) corporate obligations having a maturity of 180 days
or less and rated at least Prime-1 by ▇▇▇▇▇'▇ or A-1 by S&P or issued
by any Lender;
(c) any direct obligation of the United States of
America or any agency or instrumentality thereof, or of any state or
municipality thereof, (i) which has a remaining maturity at the time
of purchase of not more than 180 days or which is subject to a
repurchase agreement with any Lender (or any other financial
institution referred to in clause (a) above) exercisable within 180
days from the time of purchase and (ii) which, in the case of
obligations of any state or municipality, is rated at least AAA by
▇▇▇▇▇'▇ or AAA by S&P; and
(d) any mutual fund or other pooled investment vehicle
rated at least Aa by ▇▇▇▇▇'▇ or AA by S&P which invests principally in
obligations described above.
1.26. "CERCLA" means the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980.
1.27. "CERCLIS" means the federal Comprehensive Environmental
Response Compensation Liability Information System List (or any successor
document) issued under CERCLA.
1.28. "Charter" means the articles of organization, certificate of
incorporation, statute, constitution, joint venture agreement, partnership
agreement, trust indenture, limited liability company agreement or other
charter document of any Person other than an individual, each as from time to
time in effect.
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13
1.29. "Closing Date" means the Initial Closing Date and each other
date on which any extension of credit is made pursuant to Sections 2.1, 2.2 or
2.3.
1.30. "Code" means the federal Internal Revenue Code of 1986.
1.31. "Collateral Agent" means ▇▇▇▇▇ Fargo in its capacity as
collateral agent for the Lenders hereunder, as well as its successors and
assigns in such capacity pursuant to Section 10.7.
1.32. "Commitment" means, with respect to any Lender, such
Lender's obligations to extend the credits contemplated by Section 2. The
original Commitments are set forth in Exhibit 10.1 and the current Commitments
are recorded from time to time in the Register.
1.33. "Commitment Fee Rate" means, with respect to any Payment
Date or the Final Maturity Date, (a) 0.500% in the event Consolidated Total
Debt as of the end of the most recent fiscal quarter for which financial
statements have been (or are required to have been) furnished to the Lenders in
accordance with Section 6.4.1 or 6.4.2 equals or exceeds 400% of Consolidated
Annualized EBITDA for such quarter and (b) 0.375% in all other events.
1.34. "Communications Act" means the federal Communications Act of
1934.
1.35. "Company" means ATC Tower Corp., a Delaware corporation.
1.36. "Computation Covenants" means Sections 6.5, 6.6.7, 6.6.8,
6.6.14, 6.9.6, 6.10.2, 6.10.3, 6.10.4, 6.10.5, 6.11.5, 6.11.6, 6.11.7 and 6.16.
1.37. "Consolidated" and "Consolidating", when used with reference
to any term, mean that term as applied to the accounts of the Company (or other
specified Person) and all of its Subsidiaries (or other specified group of
Persons), or such of its Subsidiaries as may be specified, consolidated (or
combined) or consolidating (or combining), as the case may be, in accordance
with GAAP and with appropriate deductions for minority interests in
Subsidiaries.
1.38. "Consolidated Annualized EBITDA" means, for any period, 400%
of Consolidated EBITDA for the most recent fiscal quarter ending in such
period.
1.39. "Consolidated EBITDA" means, for any period, the total of:
(a) Consolidated Net Income;
plus (b) all amounts deducted in computing such Consolidated
Net Income in respect of:
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14
(i) depreciation, amortization and other
non-cash charges,
(ii) interest on, and commitment fees with
respect to, Indebtedness (including payments in the nature
of interest under Capitalized Leases and Interest Rate
Protection Agreements),
(iii) taxes based upon or measured by net
income, and
(iv) up to $150,000 per fiscal year in
consulting payments to ▇▇▇ ▇▇▇▇▇;
minus (c) all amounts included in Consolidated Net Income in
respect of deferred income tax benefits.
1.40. "Consolidated Construction Capital Expenditures" means, for
any period, amounts added or required to be added to the property, plant and
equipment or other fixed assets account on the Consolidated balance sheet of
the Company and its Subsidiaries, prepared in accordance with GAAP, in respect
of (a) the construction, improvement or replacement of Towers and the
leaseholds or real property on which such Towers are located and (b) to the
extent not included in clause (a) above, materials, contract labor and direct
labor relating thereto (excluding amounts properly expensed as repairs and
maintenance in accordance with GAAP).
1.41. "Consolidated Excess Cash Flow" means, for any period, the
total of:
(a) Consolidated EBITDA,
minus (b) Consolidated Fixed Charges,
minus (c) to the extent not included in clause (b) above,
mandatory reductions in availability under Section 2.1 and any other
revolving credit facilities of the Company and its Subsidiaries
permitted by this Agreement,
minus (d) voluntary prepayments of the Term Notes and other
term Financing Debt of the Company and its Subsidiaries permitted by
this Agreement,
minus (e) Consolidated Working Capital Factor (if a positive
number),
plus (f) Consolidated Working Capital Factor (if a negative
number); provided, however, that for all purposes of computing
Consolidated Excess Cash Flow, the amount of Consolidated Working
Capital Factor described in this clause (f) shall be treated as a
positive number.
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minus (g) $2,500,000.
1.42. "Consolidated Fixed Charges" means, for any period, the sum
of:
(a) Consolidated Interest Expense,
plus (b) the aggregate amount of all mandatory scheduled
payments and sinking fund payments with respect to principal paid by
the Company and its Subsidiaries in respect of Consolidated Total
Debt, including payments in the nature of principal under Capitalized
Leases, but in no event including contingent prepayments required by
Section 4.3,
plus (c) taxes based upon or measured by net income that
are actually paid in cash,
plus (d) Capital Expenditures.
1.43. "Consolidated Interest Expense" means, for any period, the
aggregate amount of interest, including commitment fees, payments in the nature
of interest under Capitalized Leases and net payments under Interest Rate
Protection Agreements, accrued by the Company and its Subsidiaries (whether
such interest is reflected as an item of expense or capitalized, but excluding
PIK Interest) in accordance with GAAP on a Consolidated basis.
1.44. "Consolidated Net Income" means, for any period, the net
income (or loss) of the Company and its Subsidiaries, determined in accordance
with GAAP on a Consolidated basis; provided, however, that Consolidated Net
Income shall not include:
(a) the income (or loss) of any Person (other than a
Subsidiary) in which the Company or any of its Subsidiaries has an
ownership interest; provided, however, that Consolidated Net Income
shall include amounts in respect of the income of such Person when
actually received in cash by the Company or such Subsidiary in the
form of dividends or similar Distributions; and
(b) extraordinary and nonrecurring gains and losses.
1.45. "Consolidated Pro Forma Debt Service" means, for any period,
the sum of the following items, projected to be accrued by the Company and its
Subsidiaries:
(a) Consolidated Interest Expense, plus
(b) the aggregate amount of all mandatory scheduled
payments, mandatory scheduled prepayments, sinking fund payments and
mandatory reductions in revolving loans as a result of reductions in
revolving credit availability, all with respect to
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16
Financing Debt of the Company and its Subsidiaries in accordance with
GAAP on a Consolidated basis.
For purposes of computing Consolidated Pro Forma Debt Service:
(i) the amount of Financing Debt outstanding
on the first day of such period shall be assumed to remain
outstanding during the entire period, except to the extent
required to be reduced by mandatory scheduled payments,
reductions in revolving credit availability and other items
described in paragraph (b) above; and
(ii) where interest varies with a floating
rate, the rate in effect on the first day of such period
will be assumed to remain constant during the entire period
(giving effect to any applicable Interest Rate Protection
Agreements).
1.46. "Consolidated Revenues" means, for any period, the total
revenues (net of discounts, commissions and other customary exclusions) of the
Company and its Subsidiaries, determined in accordance with GAAP on a
Consolidated basis.
1.47. "Consolidated Senior Debt" means, at any date, Consolidated
Total Debt minus Subordinated Debt.
1.48. "Consolidated Total Debt" means, at any date, all Financing
Debt of the Company and its Subsidiaries on a Consolidated basis.
1.49. "Consolidated Working Capital Factor" means, for any period,
the amount (whether positive or negative) equal to:
Current Assets
(a) Accounts Receivable:
(i) the amount, if any, by which accounts
receivable at the end of such period were
greater than accounts receivable at the
beginning of such period,
minus (ii) the amount, if any, by which accounts
receivable at the end of such period were
less than accounts receivable at the
beginning of such period,
(b) Prepaid Expenses:
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plus (i) the amount, if any, by which prepaid
expenses at the end of such period were
greater than prepaid expenses at the
beginning of such period,
minus (ii) the amount, if any, by which prepaid expenses
at the end of such period were less than
prepaid expenses at the beginning of such
period,
(c) Materials and Supplies:
plus (i) the amount, if any, by which materials and
supplies at the end of such period were
greater than material and supplies at the
beginning of such period,
minus (ii) the amount, if any, by which material and
supplies at the end of such period were less
than material and supplies at the beginning
of such period,
Current Liabilities
(d) Accounts Payable:
plus (i) the amount, if any, by which accounts
payable at the end of such period were less
than accounts payable at the beginning of
such period,
minus (ii) the amount, if any, by which accounts payable
at the end of such period were greater than
accounts payable at the beginning of such
period,
(e) Accrued Interest Payable:
plus (i) the amount, if any, by which accrued interest
payable at the end of such period was less
than accrued interest payable at the
beginning of such period,
minus (ii) the amount, if any, by which accrued interest
payable at the end of such period was greater
than accrued interest payable at the
beginning of such period,
(f) Deferred Revenue:
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plus (i) the amount, if any, by which deferred revenue
at the end of such period was less than
deferred revenue at the beginning of such
period,
minus (ii) the amount, if any, by which deferred revenue
at the end of such period was greater than
deferred revenue at the beginning of such
period,
(g) Other Current Liabilities:
plus (i) the amount, if any, by which other current
liabilities at the end of such period were
less than other current liabilities at the
beginning of such period,
minus (ii) the amount, if any, by which other current
liabilities at the end of such period were
greater than other current liabilities at the
beginning of such period,
(h) Deferred Compensation Contracts:
plus (i) the amount, if any, by which deferred
compensation contracts at the end of such
period were less than deferred compensation
contracts at the beginning of such period,
minus (ii) the amount, if any, by which deferred
compensation contracts at the end of such
period were greater than deferred
compensation contracts at the beginning of
such period,
all with respect to the Company and its Subsidiaries as determined in
accordance with GAAP on a Consolidated basis.
1.50. "Credit Documents" means:
(a) this Agreement, the Notes, each Letter of Credit,
each draft presented or accepted under a Letter of Credit, the
Guarantee Agreement, the Security Agreement, the fee agreement
contemplated by Section 5.1.2, each Assignment of Leases, each
Mortgage, each Estoppel and Consent Letter, each Assignment of License
Agreement, the Parent Pledge Agreement, the Master Subordination
Agreement, each other Subordination Agreement and each Interest Rate
Protection Agreement provided by a Lender (or an Affiliate of a
Lender) to the Company or any of its Subsidiaries, each as from time
to time in effect; and
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19
(b) any other present or future agreement or instrument
from time to time entered into among the Company, any of its
Subsidiaries or any other Obligor, on one hand, and the Managing
Agent, the Collateral Agent, any Letter of Credit Issuer or all the
Lenders, on the other hand, relating to, amending or modifying this
Agreement or any other Credit Document referred to above or which is
stated to be a Credit Document, each as from time to time in effect.
1.51. "Credit Obligations" means all present and future
liabilities, obligations and Indebtedness of the Company, any of its
Subsidiaries or any other Obligor owing to the Managing Agent, the Collateral
Agent or any Lender (or any Affiliate of a Lender) under or in connection with
this Agreement or any other Credit Document, including obligations in respect
of principal, interest, reimbursement obligations under Letters of Credit and
Interest Rate Protection Agreements provided by a Lender (or an Affiliate of a
Lender), commitment fees, Letter of Credit fees, amounts provided for in
Sections 3.2.4, 3.5 and 9 and other fees, charges, indemnities and expenses
from time to time owing hereunder or under any other Credit Document (whether
accruing before or after a Bankruptcy Default).
1.52. "Credit Participant" is defined in Section 11.2.
1.53. "Credit Security" means all assets now or from time to time
hereafter subjected to a security interest, mortgage or charge (or intended or
required so to be subjected pursuant to the Security Agreement, any Assignment
of Leases, any Mortgage, any Assignment of License Agreement or any other
Credit Document) to secure the payment or performance of any of the Credit
Obligations.
1.54. "Default" means any Event of Default and any event or
condition which with the passage of time or giving of notice, or both, would
become an Event of Default and the filing against the Company, any of its
Subsidiaries or any other Obligor of a petition commencing an involuntary case
under the Bankruptcy Code.
1.55. "Delinquency Period" is defined in Section 10.4.4.
1.56. "Delinquent Lender" is defined in Section 10.4.4.
1.57. "Delinquent Payment" is defined in Section 10.4.4.
1.58. "Designated ATR Proceeds" means, with respect to calculating
Net Debt Proceeds and Net Equity Proceeds, for each fiscal year of the Company
the aggregate amount specified in the table below for application to debt
service and reasonable Capital Expenditures of American Tower Rental Inc.:
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Fiscal Year Amount
----------- ------
1997 $500,000
1998 $500,000
1999 $1,000,000
2000 $2,000,000
2001 and thereafter Zero
1.59. "Designated Financing Debt" means Financing Debt incurred by
the Company or any of its Subsidiaries after the date hereof other than
Financing Debt permitted by Sections 6.6.1 (the Loan), 6.6.7 (purchase money
Indebtedness and Capitalized Lease) and 6.6.9 (intercompany Indebtedness).
1.60. "Designated Real Property" means each real property owned or
leased by the Company or any of its Subsidiaries either (a) subject to a
Mortgage or Assignment of Leases pursuant to the Prior Credit Agreement, (b)
upon which any Pledged Tower is located or (c) designated in writing by the
Managing Agent as necessary for Pledged Towers to contribute at least the
percentage of Consolidated Revenues as required by Section 6.5.8.
1.61. "Distribution" means, with respect to the Company (or other
specified Person):
(a) the declaration or payment of any dividend or
distribution, including dividends payable in shares of capital stock
of or other equity interests in the Company (or such specified
Person), on or in respect of any shares of any class of capital stock
of or other equity interests in the Company (or such specified
Person);
(b) the purchase, redemption or other retirement of any
shares of any class of capital stock of or other equity interest in
the Company (or such specified Person) or of options, warrants or
other rights for the purchase of such shares, directly, indirectly
through a Subsidiary or otherwise;
(c) any other distribution on or in respect of any
shares of any class of capital stock of or equity or other beneficial
interest in the Company (or such specified Person);
(d) any payment of principal or interest with respect
to, or any purchase, redemption or defeasance of, any Financing Debt
of the Company (or such specified Person) which by its terms or the
terms of any agreement is subordinated to the payment of the Credit
Obligations; and
(e) any payment, loan or advance by the Company (or
such specified Person) to, or any other Investment by the Company (or
such specified Person) in, the holder
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of any shares of any class of capital stock of or equity interest in
the Company (or such specified Person), or any Affiliate of such
holder (including the payment of management fees and transaction fees
and expenses);
provided, however, that the term "Distribution" shall not include (i) dividends
payable in perpetual common stock of or other similar equity interests in the
Company (or such specified Person) or (ii) payments in the ordinary course of
business in respect of (A) reasonable compensation paid to employees, officers
and directors, (B) advances and reimbursements to employees for travel
expenses, drawing accounts and similar expenditures, or (C) rent paid to, or
accounts payable for services rendered or goods sold by, non-Affiliates that
own capital stock of or other equity interests in the Company (or such
specified Person).
1.62. "ECF Prepayment Percentage" means, with respect to any
fiscal year of the Company, (a) 50% in the event Consolidated Total Debt as of
the end of such fiscal year equals or exceeds 350% of Consolidated Annualized
EBITDA for the last quarter of such fiscal year and (b) 25% in all other
events.
1.63. "Employee Trust Note" means the unsecured subordinate
promissory note of the Company in the original principal amount of $500,000,
without interest and maturing on the fifth anniversary of its issuance date, in
favor of the Company's Incentive Compensation Trust (the terms of subordination
to be satisfactory to the Managing Agent).
1.64. "Environmental Laws" means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to protection of
the environment, including OSHA.
1.65. "Equity Transaction" means any issuance by the Parent, ATC
Holdings, the Company or any of the Company's Subsidiaries to any Person (other
than any Obligors, their officers, employees and directors) of any shares of
its capital stock, other equity interests or options, warrants or other
purchase rights to acquire such capital stock or other equity interests.
1.66. "ERISA" means the federal Employee Retirement Income
Security Act of 1974.
1.67. "ERISA Group Person" means the Company, any Subsidiary of
the Company and any Person which is a member of the controlled group or under
common control with the Company or any Subsidiary within the meaning of section
414 of the Code or section 4001(a)(14) of ERISA.
1.68. "Estoppel and Consent Letters" means estoppel and consent
letters addressed to the Collateral Agent or the Managing Agent for the benefit
of the Lenders, in form and substance satisfactory to the Required Lenders,
executed by each of the lessors under the
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Leases and future leases of real property as the same may be renewed, modified,
extended, supplemented or rearranged, at any time and from time to time.
1.69. "Eurodollars" means, with respect to any Lender, deposits of
United States Funds in a non-United States office or an international banking
facility of such Lender.
1.70. "Eurodollar Basic Rate" means, for any Eurodollar Interest
Period, the rate of interest at which Eurodollar deposits which have a term
corresponding to such Eurodollar Interest Period are offered to the Managing
Agent by first class banks in the inter-bank Eurodollar market for delivery in
immediately available funds at a Eurodollar Office on the first day of such
Eurodollar Interest Period at approximately 10:00 a.m. (Boston time) two
Banking Days prior to the date upon which such Eurodollar Interest Period is to
commence (which determination by the Managing Agent shall, in the absence of
manifest error, be conclusive).
1.71. "Eurodollar Interest Period" means any period, selected as
provided in Section 3.2.1, of one, two, three or six months, commencing on any
Banking Day and ending on the corresponding date in the subsequent calendar
month so indicated (or, if such subsequent calendar month has no corresponding
date, on the last day of such subsequent calendar month); provided, however,
that subject to Section 3.2.3, if any Eurodollar Interest Period so selected
would otherwise begin or end on a date which is not a Banking Day, such
Eurodollar Interest Period shall instead begin or end, as the case may be, on
the immediately preceding or succeeding Banking Day as determined by the
Managing Agent in accordance with the then current banking practice in the
inter-bank Eurodollar market with respect to Eurodollar deposits at the
applicable Eurodollar Office, which determination by the Managing Agent shall,
in the absence of manifest error, be conclusive.
1.72. "Eurodollar Office" means such non-United States office or
international banking facility of any Lender as the Lender may from time to
time select.
1.73. "Eurodollar Pricing Options" means the options granted
pursuant to Section 3.2.1 to have the interest on any portion of the Loan
computed on the basis of a Eurodollar Rate.
1.74. "Eurodollar Rate" for any Eurodollar Interest Period means
the rate, rounded upward to the nearest 1/100%, obtained by dividing (a) the
Eurodollar Basic Rate for such Eurodollar Interest Period by (b) an amount
equal to 1 minus the Eurodollar Reserve Rate; provided, however, that if at any
time during such Eurodollar Interest Period the Eurodollar Reserve Rate
applicable to any outstanding Eurodollar Pricing Option changes, the Eurodollar
Rate for such Eurodollar Interest Period shall automatically be adjusted to
reflect such change, effective as of the date of such change to the extent
required by the Legal Requirement implementing such change.
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1.75. "Eurodollar Reserve Rate" means the stated maximum rate
(expressed as a decimal) of all reserves (including any basic, supplemental,
marginal or emergency reserve or any reserve asset), if any, as from time to
time in effect, required by any Legal Requirement to be maintained by any
Lender against (a) "Eurocurrency liabilities" as specified in Regulation D of
the Board of Governors of the Federal Reserve System applicable to Eurodollar
Pricing Options, or (b) any other category of liabilities that includes
Eurodollar deposits by reference to which the interest rate on portions of the
Loan subject to Eurodollar Pricing Options is determined, in each case without
the benefits of credits for prorations, exceptions or offsets that may be
available to a Lender.
1.76. "Event of Default" is defined in Section 8.1.
1.77. "Exchange Act" means the federal Securities Exchange Act of
1934.
1.78. "FAA" means the Federal Aviation Authority.
1.79. "FCC" means the Federal Communications Commission.
1.80. "Federal Funds Rate" means, for any day, the rate equal to
the weighted average (rounded upward to the nearest 1/8%) of (a) the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, (a) as such weighted average is published
for such day (or, if such day is not a Banking Day, for the immediately
preceding Banking Day) by the Federal Reserve Bank of New York or (b) if such
rate is not so published for such Banking Day, quotations received by the
Managing Agent from three federal funds brokers of recognized standing selected
by the Managing Agent. Each determination by the Managing Agent of the Federal
Funds Rate shall, in the absence of manifest error, be conclusive.
1.81. "Final Maturity Date" means October 10, 2003.
1.82. "Financial Officer" of the Company (or other specified
Person) means its chief executive officer, chief financial officer, chief
operating officer, chairman, president, treasurer, controller or any of its
vice presidents whose primary responsibility is for its financial affairs, all
of whose incumbency and signatures have been certified to the Managing Agent by
the secretary or other appropriate attesting officer of the Company (or such
specified Person).
1.83. "Financing Debt" means each of the items described in
clauses (a) through (e) of the definition of the term "Indebtedness" and,
without duplication, any Guarantees of such items.
1.84. "Foreign Trade Regulations" means (a) any act that prohibits
or restricts, or empowers the President or any executive agency of the United
States of America to prohibit or
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24
restrict, exports to or financial transactions with any foreign country or
foreign national, (b) the regulations with respect to certain prohibited
foreign trade transactions set forth at 22 C.F.R. Parts 120-130 and 31 C.F.R.
Part 500 and (c) any order, regulation, ruling, interpretation, direction,
instruction or notice relating to any of the foregoing.
1.85. "Funding Liability" means (a) any Eurodollar deposit which
was used (or deemed by Section 3.2.6 to have been used) to fund any portion of
the Loan subject to a Eurodollar Pricing Option, and (b) any portion of the
Loan subject to a Eurodollar Pricing Option funded (or deemed by Section 3.2.6
to have been funded) with the proceeds of any such Eurodollar deposit.
1.86. "GAAP" means generally accepted accounting principles as
from time to time in effect, including the statements and interpretations of
the United States Financial Accounting Standards Board; provided, however, that
for purposes of compliance with Section 6 (other than Section 6.4) and the
related definitions, "GAAP" means such principles as in effect on December 31,
1995 as applied by the Company and its Subsidiaries in the preparation of the
most recent annual statements referred to in Section 7.2.1(a), and consistently
followed, without giving effect to any subsequent changes thereto.
1.87. "Guarantee" means, with respect to the Company (or other
specified Person):
(a) any guarantee by the Company (or such specified
Person) of the payment or performance of, or any contingent obligation
by the Company (or such specified Person) in respect of, any
Indebtedness or other obligation of any primary obligor;
(b) any other arrangement whereby credit is extended to
a primary obligor on the basis of any promise or undertaking of the
Company (or such specified Person), including any binding "comfort
letter" or "keep well agreement" written by the Company (or such
specified Person), to a creditor or prospective creditor of such
primary obligor, to (i) pay the Indebtedness of such primary obligor,
(ii) purchase an obligation owed by such primary obligor, (iii) pay
for the purchase or lease of assets or services regardless of the
actual delivery thereof or (iv) maintain the capital, working capital,
solvency or general financial condition of such primary obligor;
(c) any liability of the Company (or such specified
Person), as a general partner of a partnership in respect of
Indebtedness or other obligations of such partnership;
(d) any liability of the Company (or such specified
Person) as a joint venturer of a joint venture in respect of
Indebtedness or other obligations of such joint venture;
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25
(e) any liability of the Company (or such specified
Person) with respect to the tax liability of others as a member of a
group (other than a group consisting solely of the Parent and its
Subsidiaries) that is consolidated for tax purposes; and
(f) reimbursement obligations, whether contingent or
matured, of the Company (or such specified Person) with respect to
letters of credit, bankers acceptances, surety bonds, other financial
guarantees and Interest Rate Protection Agreements,
in each case whether or not any of the foregoing are reflected on the balance
sheet of the Company (or such specified Person) or in a footnote thereto;
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Guarantee and the amount of Indebtedness resulting from such Guarantee shall be
the maximum amount that the guarantor may become obligated to pay in respect of
the obligations (whether or not such obligations are outstanding at the time of
computation).
1.88. "Guarantee Agreement" is defined in Section 5.1.7.
1.89. "Guarantor" means the Parent, ATC Holdings and each
Subsidiary of the Company listed on the signature pages hereto or which
subsequently becomes party to the Guarantee Agreement as a Guarantor.
1.90. "Hazardous Material" means any pollutant, toxic or hazardous
material or waste, including any "hazardous substance" or "pollutant" or
"contaminant" as defined in section 101(14) of CERCLA or any other
Environmental Law or regulated as toxic or hazardous under RCRA or any other
Environmental Law.
1.91. "Indebtedness" means all obligations, contingent or
otherwise, which in accordance with GAAP are required to be classified upon the
balance sheet of the Company (or other specified Person) as liabilities, but in
any event including (without duplication):
(a) borrowed money;
(b) indebtedness evidenced by notes, debentures or
similar instruments;
(c) Capitalized Lease Obligations;
(d) the deferred purchase price of assets or
securities, including related noncompetition, consulting and stock
repurchase obligations (other than ordinary trade accounts payable
within six months after the incurrence thereof in the ordinary course
of business);
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26
(e) reimbursement obligations, whether contingent or
matured, with respect to letters of credit, bankers acceptances,
surety bonds, other financial guarantees and Interest Rate Protection
Agreements (without duplication of other Indebtedness supported or
guaranteed thereby);
(f) mandatory redemption or dividend rights on capital
stock (or other equity);
(g) liabilities secured by any Lien existing on
property owned or acquired by the Company (or such specified Person),
whether or not the liability secured thereby shall have been assumed;
and
(h) all Guarantees in respect of Indebtedness of others.
1.92. "Indemnified Party" is defined in Section 9.2.
1.93. "Initial Closing Date" means October 11, 1996 or such other
date prior to December 31, 1996 agreed to by the Company and the Managing Agent
as the first Closing Date hereunder.
1.94. "Interest Rate Protection Agreement" means any interest rate
swap, interest rate cap, interest rate hedge or other contractual arrangement
that converts variable interest rates into fixed interest rates, fixed interest
rates into variable interest rates or other similar arrangements.
1.95. "Investment" means, with respect to the Company (or other
specified Person):
(a) any share of capital stock, partnership or other
equity interest, evidence of Indebtedness or other security issued by
any other Person;
(b) any loan, advance or extension of credit to, or
contribution to the capital of, any other Person;
(c) any Guarantee of the Indebtedness of any other
Person; and
(d) any acquisition of all, or any division or similar
operating unit of, the business of any other Person or the assets
comprising such business, division or unit.
The investments described in the foregoing clauses (a) through (e)
shall be included in the term "Investment" whether they are made or acquired by
purchase, exchange, issuance of stock or other securities, merger,
reorganization or any other method; provided, however, that the term
"Investment" shall not include (i) current trade and customer accounts
receivable for property leased, goods furnished or services rendered in the
ordinary course of business and
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payable in accordance with customary trade terms, (ii) deposits, advances or
prepayments to suppliers for property leased or licensed, goods furnished and
services rendered in the ordinary course of business, (iii) advances to
employees for relocation and travel expenses, drawing accounts and similar
expenditures, (iv) stock or other securities acquired in connection with the
satisfaction or enforcement of Indebtedness or claims due to the Company (or
such specified Person) or as security for any such Indebtedness or claim or (v)
demand deposits in banks or similar financial institutions.
In determining the amount of outstanding Investments:
(A) the amount of any Investment shall be the cost thereof
minus any returns of capital in cash on such Investment (determined in
accordance with GAAP without regard to amounts realized as income on
such Investment);
(B) the amount of any Investment in respect of a purchase
described in clause (d) above shall include the amount of any
Financing Debt assumed in connection with such purchase or secured by
any asset acquired in such purchase (whether or not any Financing Debt
is assumed) or for which any Person that becomes a Subsidiary is
liable on the date on which the securities of such Person are
acquired; and
(C) no Investment shall be increased as the result of an
increase in the undistributed retained earnings of the Person in which
the Investment was made or decreased as a result of an equity interest
in the losses of such Person.
1.96. "Leases" means the leases of real property on which Towers
are located.
1.97. "Legal Requirement" means any present or future requirement
imposed upon any of the Lenders or the Company and its Subsidiaries by any law,
statute, rule, regulation, directive, order, decree or guideline (or any
interpretation thereof by courts or of administrative bodies) of the United
States of America, or any jurisdiction in which any Eurodollar Office is
located or any state or political subdivision of any of the foregoing, or by
any board, governmental or administrative agency, central bank or monetary
authority of the United States of America, any jurisdiction in which any
Eurodollar Office is located, or any political subdivision of any of the
foregoing. Any such law, statute, rule, regulation, directive, order, decree,
guideline or interpretation imposed on any of the Lenders not having the force
of law shall be deemed to be a Legal Requirement for purposes of Section 3 if
such Lender reasonably believes that compliance therewith is customary
commercial practice.
1.98. "Lender" means each of the Persons listed as lenders on the
signature page hereto, including Bank of Boston and, to the extent it has a
Percentage Interest in the Credit Obligations, ▇▇▇▇▇ Fargo, each in its
capacity as a Lender and such other Persons who may from time to time own a
Percentage Interest in the Credit Obligations, but the term "Lender" shall not
include any Credit Participant.
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1.99. "Lending Officer" means such individuals whom the Managing
Agent may designate by notice to the Company from time to time as an officer
who may receive telephone requests for borrowings under Section 2.1.3.
1.100. "Letter of Credit" is defined in Section 2.3.1.
1.101. "Letter of Credit Exposure" means, at any date, the sum of
(a) the aggregate face amount of all drafts that may then or thereafter be
presented by beneficiaries under all Letters of Credit then outstanding, plus
(b) the aggregate face amount of all drafts that the Letter of Credit Issuer
has previously accepted under Letters of Credit but has not paid.
1.102. "Letter of Credit Issuer" means, for any Letter of Credit,
Bank of Boston or, in the event Bank of Boston does not for any reason issue a
requested Letter of Credit, another Lender designated by the Managing Agent to
issue such Letter of Credit in accordance with Section 2.3.
1.103. "License Agreements" means the license agreements between
the Company or one of its Subsidiaries, on one hand, and its customers, on the
other hand, for the licensing of space on the Towers.
1.104. "Lien" means, with respect to the Company (or any other
specified Person):
(a) any lien, encumbrance, mortgage, pledge, charge or
security interest of any kind upon any property or assets of the
Company (or such specified Person), whether now owned or hereafter
acquired, or upon the income or profits therefrom;
(b) the acquisition of, or the agreement to acquire,
any property or asset upon conditional sale or subject to any other
title retention agreement, device or arrangement (including a
Capitalized Lease); and
(c) the sale, assignment, pledge or transfer for
security of any accounts, general intangibles or chattel paper of the
Company (or such specified Person), with or without recourse.
1.105. "Loan" means, collectively, the Revolving Loan and the Term
Loan.
1.106. "Managing Agent" means Bank of Boston in its capacity as
managing agent for the Lenders hereunder, as well as its successors and assigns
in such capacity pursuant to Section 10.7.
1.107. "Margin Stock" means "margin stock" within the meaning of
Regulations G, T, U or X of the Board of Governors of the Federal Reserve
System.
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1.108. "Master Subordination Agreement" is defined in Section
5.1.6.
1.109. "Material Adverse Change" means, since any specified date or
from the circumstances existing immediately prior to the happening of any
specified event, a material adverse change in (a) the business, assets,
operations or financial condition of the Company (on an individual basis) or
the Company and its Subsidiaries (on a Consolidated basis), or (b) the ability
of the Obligors to perform their obligations under the Credit Documents or (c)
the Lenders' rights to enforce or collect the Credit Obligations.
1.110. "Material Agreements" is defined in Section 7.2.2.
1.111. "Maximum Amount of Revolving Credit" is defined in Section
2.1.2.
1.112. "Maximum Rate" means the maximum lawful rate of interest
permitted by applicable laws, now or hereafter enacted, which interest rate
shall change when and as such laws change, to the extent permitted by such
laws, effective on the day such change in such laws becomes effective;
provided, however, that the term "Maximum Rate" shall mean a rate of interest
equal to three percentage points above the Applicable Rate, as it varies, if no
Maximum Rate exists under applicable laws.
1.113. "Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
1.114. "Mortgages" means the mortgages and the deeds of trust
executed by the Company on October 12, 1994 or thereafter in favor of the
Collateral Agent or the Managing Agent for the benefit of the Lenders,
encumbering the real property upon which Towers are located, in form and
substance satisfactory to the Required Lenders, as the same may be amended,
renewed, modified, extended, supplemented or rearranged, at any time and from
time to time.
1.115. "Multiemployer Plan" means any Plan that is a "multiemployer
plan" as defined in section 4001(a)(3) of ERISA.
1.116. "Net Asset Sale Proceeds" means the cash proceeds of the
sale or disposition of assets (including by way of merger) by the Company or
any of its Subsidiaries net of (a) any Indebtedness permitted by Section 6.6.7
(Capitalized Leases and purchase money indebtedness) secured by assets being
sold in such transaction required to be paid from such proceeds, (b) income
taxes that, as estimated by the Company in good faith, will be required to be
paid by the Company or any of its Subsidiaries in cash as a result of, and
within 15 months after such sale or disposition, (c) reasonable reserves for
liabilities resulting from the sale of assets and (d) all reasonable expenses
of the Company or any of its Subsidiaries payable in connection with the sale
or disposition; provided, however, that "Net Asset Sale Proceeds" shall not
include cash proceeds (i) of asset sales permitted by Section 6.11.1, (ii) of
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mergers permitted by Section 6.11.2, (iii) from the sale of Tower assets that
will be used to acquire replacement or other Tower assets within six months
after such sale or disposition; provided, however, that if any amount in this
clause (iii) is not actually used to acquire replacement or other assets within
such six-month period, such amount shall then automatically become Net Asset
Sale Proceeds and (iv) from the sale to ▇▇▇ ▇▇▇▇▇ (or an entity controlled by
him) of Tower assets (constituting not more than 71 Towers) acquired from Prime
in the Prime Acquisition so long as (A) such Tower assets have not contributed
(and would not be expected to have contributed on a pro forma basis) $225,000
or more in annual Consolidated Revenues for the Company and its Subsidiaries
and (B) such proceeds are applied to reduce permanently the ▇▇▇▇▇ Subordinated
Debt.
1.117. "Net Debt Proceeds" means cash proceeds of the incurrence of
Designated Financing Debt by the Parent, ATC Holdings, the Company or any of
the Company's Subsidiaries (net of reasonable out-of-pocket transaction fees
and expenses); provided, however, that Net Debt Proceeds will not include
Designated ATR Proceeds received by the Parent or ATC Holdings to the extent
(a) the Designated ATR Proceeds are actually applied solely to finance debt
service and reasonable Capital Expenditures by American Tower Rental Inc. (a
Subsidiary of ATC Holdings) and (b) the Parent has given written notice to the
Managing Agent about such proposed application of Designated ATR Proceeds at
least five Banking Days prior to the receipt thereof. If Designated ATR
Proceeds are in fact not so applied to American Tower Rental Inc. within 180
days, they shall automatically become Net Debt Proceeds.
1.118. "Net Equity Proceeds" means the cash proceeds received by
the Parent, ATC Holdings, the Company or any of the Company's Subsidiaries in
connection with any Equity Transaction (net of reasonable out-of-pocket fees
and expenses); provided, however, that Net Equity Proceeds will not include
Designated ATR Proceeds received by the Parent or ATC Holdings to the extent
(a) the Designated ATR Proceeds are actually applied solely to finance debt
service and reasonable Capital Expenditures by American Tower Rental Inc. (a
Subsidiary of ATC Holdings) and (b) the Parent has given written notice to the
Managing Agent about such proposed application of Designated ATR Proceeds at
least five Banking Days prior to the receipt thereof. If Designated ATR
Proceeds are in fact not so applied to American Tower Rental Inc. within 180
days, they shall automatically become Net Equity Proceeds.
1.119. "New License Agreements" means the license agreements
between the Company or any of its Subsidiaries and its customers for the
licensing of space on the Towers, which license agreements are entered into
after the Initial Closing Date.
1.120. "Nonperforming Lender" is defined in Section 10.4.4.
1.121. "Notes" means, collectively, the Revolving Notes and the
Term Notes.
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1.122. "Obligor" means the Company, the Parent, ATC Holdings, each
other Guarantor and each other Person guaranteeing or providing collateral for
the Credit Obligations.
1.123. "OSHA" means the federal Occupational Health and Safety Act.
1.124. "Overdue Reimbursement Rate" means, at any date, the highest
Applicable Rate then in effect.
1.125. "Parent" means American Tower Corporation, a Delaware
corporation.
1.126. "Parent Pledge Agreement" is defined in Section 5.1.8.
1.127. "Parent Guarantors" means, collectively, the Parent and ATC
Holdings.
1.128. "Payment Date" means (a) the last Banking Day of each March,
June, September and December occurring after the Initial Closing Date and (b)
the Final Maturity Date.
1.129. "PBGC" means the Pension Benefit Guaranty Corporation or any
successor entity.
1.130. "Percentage Interest" means (a) at all times when no Event
of Default under Section 8.1.1 and no Bankruptcy Default exists, the ratio that
the respective Commitments of the Lenders bear to the total Commitments of all
Lenders as from time to time in effect and reflected in the Register, and (b)
at all other times, the ratio that the respective amounts of the outstanding
Credit Obligations (including Letter of Credit Exposure) owing to the Lenders
in respect of extensions of credit under Section 2 bear to the total
outstanding Credit Obligations owing to all Lenders.
1.131. "Performing Lender" is defined in Section 10.4.4.
1.132. "Person" means any present or future natural person or any
corporation, association, partnership, joint venture, limited liability, joint
stock or other company, business trust, trust, organization, business or
government or any governmental agency or political subdivision thereof.
1.133. "PIK Interest" means any accrued interest payments on
Financing Debt that are postponed, evidenced by book-entry accrual or made
through the issuance of "payment-in-kind" notes or other similar securities,
all in accordance with the terms of such Financing Debt; provided, however,
that in no event shall PIK Interest include payments made with cash or Cash
Equivalents.
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1.134. "Plan" means, at any date, any pension benefit plan subject
to Title IV of ERISA maintained, or to which contributions have been made or
are required to be made, by any ERISA Group Person within six years prior to
such date.
1.135. "Pledged Towers" means, on any date, Towers with respect to
which the Lenders hold a perfected, first priority security interest in the
Towers and the real property or leasehold upon which such Towers are located
and, in the case of leaseholds, the Lenders have received a Collateral and
Estoppel Agreement from the lessor (including the transfer and assignment of
existing Collateral and Estoppel Agreements).
1.136. "Prime" means Prime Communications Sites Holding, L.L.C.
1.137. "Prime Acquisition" means the acquisition by the Company of
approximately 180 communications towers through a contribution and transfer of
equity interests in Prime pursuant to the Prime Acquisition Agreement.
1.138. "Prime Acquisition Agreement" means the Contribution and
Transfer Agreement dated the date hereof among ATC Holdings Corp. and the Prime
Holders.
1.139. "Prime Holders" means Carlyle-Prime Investors, L.P.,
Carlyle-Prime Investors I, L.P., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and the other transferors of equity interests in Prime under the Prime
Acquisition Agreement.
1.140. "Prime Subordinated Debt" means the 11% Subordinated Notes
of the Company due 2004 in the aggregate principal amount of up to $2,800,000
payable to the Prime Holders and subordinated to the Credit Obligations in
accordance with the Prime Subordination Agreement.
1.141. "Prime Subordination Agreement" means the Subordination
Agreement dated as of the Initial Closing Date, as from time to time in effect,
among the Company, the Prime Holders and the Managing Agent.
1.142. "Prior Credit Agreement" is defined in the Recitals to this
Agreement.
1.143. "Qualified License Agreements" means New License Agreements
that will be effective within 90 days of acquisition of the applicable Tower
Company and the only condition to effectiveness of which is receipt approval
from the FCC in respect of the licensee's equipment to be placed on Tower(s).
1.144. "RCRA" means the federal Resource Conservation and Recovery
Act, 42 U.S.C. Section 690, et seq.
1.145. "Register" is defined in Section 11.1.3.
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1.146. "Replacement Lender" is defined in Section 11.3.
1.147. "Required Lenders" means, with respect to any approval,
consent, modification, waiver or other action to be taken by the Managing
Agent, the Collateral Agent or the Lenders under the Credit Documents which
require action by the Required Lenders, such Lenders as own at least two thirds
of the Percentage Interests; provided, however, that with respect to any
matters referred to in the proviso to Section 10.6, Required Lenders means such
Lenders as own at least the respective portions of the Percentage Interests
required by Section 10.6.
1.148. "Revolving Loan" is defined in Section 2.1.4.
1.149. "Revolving Notes" is defined in Section 2.1.4.
1.150. "S&P" means Standard & Poor's Ratings Group, a division of
McGraw Hill Corporation.
1.151. "Securities Act" means the federal Securities Act of 1933.
1.152. "Security Agreement" means one or more security agreements
in favor of the Collateral Agent or the Managing Agent for the benefit of the
Lenders, executed on October 12, 1994, in form and substance satisfactory to
the Required Lenders, as amended and restated as of the date hereof in
substantially the form of Exhibit 5.1.4 and as the same may be renewed,
modified, extended, supplemented or rearranged, at any time and from time to
time.
1.153. "Subordinated Debt" means the Indebtedness of a Person,
calculated in accordance with GAAP, heretofore or hereafter incurred, that, by
the express terms of the instrument evidencing or creating such Indebtedness or
by the terms of a subordination agreement in form and substance satisfactory to
the Required Lenders, is validly and effectively made subordinate and subject
in right to payment, to whatever extent the Required Lenders require, to the
prior payment of the Credit Obligations to the Lenders.
1.154. "Subordination Agreement" means one or more Subordination
Agreements in form and substance satisfactory to the Required Lenders, to be
entered into by the Company and certain other Persons, as applicable, and the
Managing Agent, as the same may be amended, renewed, modified, extended,
supplemented or rearranged at any time and from time to time.
1.155. "Subsidiary" means any Person of which the Company (or other
specified Person) shall at the time, directly or indirectly through one or more
of its Subsidiaries, (a) own at least 50% of the outstanding capital stock (or
other shares of beneficial interest)
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34
entitled to vote generally, (b) hold at least 50% of the partnership, joint
venture or similar interests or (c) be a general partner or joint venturer.
1.156. "Tax" means any present or future tax, levy, duty, impost,
deduction, withholding or other charges of whatever nature at any time required
by any Legal Requirement (a) to be paid by any Lender or (b) to be withheld or
deducted from any payment otherwise required hereby to be made to any Lender,
in each case on or with respect to its obligations hereunder, the Loan, any
payment in respect of the Credit Obligations or any Funding Liability not
included in the foregoing; provided, however, that the term "Tax" shall not
include taxes imposed upon or measured by the net income of such Lender (other
than withholding taxes) or franchise taxes that are imposed in lieu of income
taxes.
1.157. "Term Loan" is defined in Section 2.2.1.
1.158. "Term Note" is defined in Section 2.2.2.
1.159. "Tower Company" means a corporation engaged primarily in the
business of constructing, owning and/or operating communications towers and
leasing space thereon to tenants and/or managing the construction of, ownership
of, and leasing of space on communications towers for other Persons.
1.160. "Towers" means all communication towers owned by the Company
and its Subsidiaries, and any and all communication towers hereafter
constructed or acquired by the Company and its Subsidiaries (including Towers
acquired in the acquisition of stock of a Tower Company).
1.161. "Uniform Customs and Practice" is defined in Section 2.3.7.
1.162. "United States Funds" means such coin or currency of the
United States of America as at the time shall be legal tender therein for the
payment of public and private debts.
1.163. "▇▇▇▇▇ Fargo" means ▇▇▇▇▇ Fargo Bank (Texas) National
Association, successor to First Interstate Bank of Texas, N.A.
1.164. "Wholly Owned Subsidiary" means any Subsidiary of which all
of the outstanding capital stock (or other shares of beneficial interest)
entitled to vote generally (other than directors' qualifying shares) is owned
by the Company (or other specified Person) directly, or indirectly through one
or more Wholly Owned Subsidiaries.
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35
2. The Credits.
2.1. Revolving Credit.
2.1.1. Revolving Loan. Subject to all the terms and
conditions of this Agreement and so long as no Default exists, from
time to time on and after the Initial Closing Date and prior to the
Final Maturity Date the Lenders will, severally in accordance with
their respective Commitments in the Revolving Loan, make loans to the
Company in such amounts as may be requested by the Company in
accordance with Section 2.1.3. The sum of the aggregate principal
amount of loans made under this Section 2.1.1 at any one time
outstanding plus the Letter of Credit Exposure shall in no event
exceed the Maximum Amount of Revolving Credit. In no event will the
principal amount of loans at any one time outstanding made by any
Lender pursuant to this Section 2.1 exceed such Lender's Commitment
with respect to the Revolving Loan.
2.1.2. Maximum Amount of Revolving Credit. The term
"Maximum Amount of Revolving Credit" means, on any date specified in
the table below, the lesser of (a) (i) the amount specified opposite
such period in such table:
Period Amount
------ ------
Prior to January 1, 1999 . . . . . . . . . . . . . . . $23,000,000
January 1, 1999 through
March 30, 1999 . . . . . . . . . . . . . . . . . . . $22,425,000
March 31, 1999 through
June 29, 1999 . . . . . . . . . . . . . . . . . . . $21,706,250
June 30, 1999 through
September 29, 1999 . . . . . . . . . . . . . . . . . $20,987,500
September 30, 1999 through
December 30, 1999 . . . . . . . . . . . . . . . . . $20,268,750
December 31, 1999 through
March 30, 2000 . . . . . . . . . . . . . . . . . . . $19,550,000
March 31, 2000 through
June 29, 2000 . . . . . . . . . . . . . . . . . . . $18,400,000
June 30, 2000 through
September 29, 2000 . . . . . . . . . . . . . . . . . $17,250,000
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September 30, 2000 through
December 30, 2000 . . . . . . . . . . . . . . . . . $16,100,000
December 31, 2000 through
March 30, 2001 . . . . . . . . . . . . . . . . . . . $14,950,000
March 31, 2001 through
June 29, 2001 . . . . . . . . . . . . . . . . . . . $13,800,000
June 30, 2001 through
September 29, 2001 . . . . . . . . . . . . . . . . . $12,650,000
September 30, 2001 through
December 30, 2001 . . . . . . . . . . . . . . . . . $ 11,500,000
December 31, 2001 through
March 30, 2002 . . . . . . . . . . . . . . . . . . . $10,350,000
March 31, 2002 through
June 29, 2002 . . . . . . . . . . . . . . . . . . . $ 8,912,500
June 30, 2002 through
September 29, 2002 . . . . . . . . . . . . . . . . . $ 7,475,000
September 30, 2002 through
December 30, 2002 . . . . . . . . . . . . . . . . . $ 6,037,500
December 31, 2002 through
March 30, 2003 . . . . . . . . . . . . . . . . . . . $ 4,600,000
March 31, 2003 through
June 29, 2003 . . . . . . . . . . . . . . . . . . . $ 3,066,667
June 30, 2003 through
September 29, 2003 . . . . . . . . . . . . . . . . . $ 1,533,333
Final Maturity Date . . . . . . . . . . . . . . . . . . - $ 0 -
minus (ii) Net Asset Sale Proceeds described in Section 4.3.3 and
allocated to the Revolving Loan under Section 4.6.2, Net Debt Proceeds
described in Section 4.3.4 and allocated to the Revolving Loan under
Section 4.6.2 and Net Equity Proceeds described in Section 4.3.5 and
allocated to the Revolving Loan under Section 4.6.2, minus (iii) the
portion of Consolidated Excess Cash Flow as described in Section 4.3.2
and
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allocated to the Revolving Loan under Section 4.6.2 or (b) the amount
(in an integral multiple of $1,000,000) to which the then applicable
amount set forth in such table shall have been irrevocably reduced
from time to time by notice from the Company to the Managing Agent.
The Company shall not give a notice reducing the amount applicable to
any period in the table above unless it shall also reduce the amounts
applicable to all subsequent periods in such table to at least the
same specified lower amount, so that the Maximum Amount of Revolving
Credit for any subsequent period shall not exceed the reduced Maximum
Amount of Revolving Credit applicable to any prior period.
2.1.3. Borrowing Requests. The Company may from time
to time request a loan under Section 2.1.1 by providing to the
Managing Agent a notice not later than noon (Boston time) on the first
Banking Day (third Banking Day if any portion of such loan will be
subject to a Eurodollar Pricing Option on the requested Closing Date)
prior to the requested Closing Date for such loan. The notice must
specify (a) the amount of the requested loan (which shall be not less
than $100,000 and an integral multiple of $10,000) and (b) the
requested Closing Date therefor (which shall be a Banking Day). Upon
receipt of such notice, the Managing Agent will promptly inform each
other Lender (by telephone or otherwise). Each such loan will be made
at the Boston Office by depositing the amount thereof to the general
account of the Company with the Managing Agent. In connection with
each such loan, the Company shall furnish to the Managing Agent a
certificate in substantially the form of Exhibit 5.2.1.
2.1.4. Revolving Notes. The aggregate principal amount
of the loans outstanding from time to time under this Section 2.1 is
referred to as the "Revolving Loan". The Managing Agent shall keep a
record of the Revolving Loan in the Register. The Revolving Loan
shall be deemed owed to each Lender having a Commitment therein
severally in accordance with such Lender's Percentage Interest
therein, and all payments thereon shall be for the account of each
Lender in accordance with its Percentage Interest therein. The
Company's obligations to pay each Lender's Percentage Interest in the
Revolving Loan shall be evidenced by a separate note of the Company in
substantially the form of Exhibit 2.1.4 (the "Revolving Notes"),
payable to each Lender in accordance with such Lender's Percentage
Interest in the Revolving Loan.
2.2. Term Credit.
2.2.1. Term Loan. Subject to all the terms and
conditions of this Agreement and so long as no Default exists, on the
Initial Closing Date the Lenders will, in accordance with their
respective Percentage Interests therein, severally lend to the Company
as a term loan, an aggregate amount equal to $37,000,000. The
aggregate principal amount of the loans made pursuant to this Section
2.2.1 at any one time outstanding is referred to as the "Term Loan".
In connection with the advance of the
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Term Loan, the Company shall furnish to the Managing Agent a
certificate in substantially the form of Exhibit 5.2.1.
2.2.2. Term Notes. The Term Loan shall be made at the
Boston Office by crediting the amount of such loan to the general
account of the Company with the Managing Agent against delivery to the
Managing Agent of the separate term notes of the Company (the "Term
Notes") payable to the respective Lenders. The Term Note issued to
each Lender shall be in a principal amount equal to such Lender's
Percentage Interest in the Term Loan, and shall be in substantially
the form of Exhibit 2.2.2.
2.3. Letters of Credit.
2.3.1. Issuance of Letters of Credit. Subject to all
the terms and conditions of this Agreement and so long as no Default
exists, from time to time on and after the Initial Closing Date and
prior to the Final Maturity Date, the Letter of Credit Issuer will
issue for the account of the Company one or more irrevocable standby
performance or financial letters of credit (the "Letters of Credit").
Letter of Credit Exposure plus the Revolving Loan shall in no event
exceed the Maximum Amount of Revolving Credit. Letter of Credit
Exposure shall in no event exceed $1,000,000.
2.3.2. Requests for Letters of Credit. The Company may
from time to time request a Letter of Credit to be issued by providing
to the Letter of Credit Issuer (and the Managing Agent if the Letter
of Credit Issuer is not the Managing Agent) a notice which is actually
received not less than three Banking Days prior to the requested
Closing Date for such Letter of Credit specifying (a) the amount of
the requested Letter of Credit, (b) the beneficiary thereof, (c) the
requested Closing Date and (d) the principal terms of the text for
such Letter of Credit. Each Letter of Credit will be issued by
forwarding it to the Company or to such other Person as directed in
writing by the Company. In connection with the issuance of any Letter
of Credit, the Company shall furnish to the Letter of Credit Issuer
(and the Managing Agent if the Letter of Credit Issuer is not the
Managing Agent) a certificate in substantially the form of Exhibit
5.2.1 and any customary application forms required by the Letter of
Credit Issuer.
2.3.3. Form and Expiration of Letters of Credit. Each
Letter of Credit issued under this Section 2.3 and each draft accepted
or paid under such a Letter of Credit shall be issued, accepted or
paid, as the case may be, by the Letter of Credit Issuer at its
principal office. No Letter of Credit shall provide for the payment
of drafts drawn thereunder, and no draft shall be payable, at a date
which is later than the earlier of (a) the date 12 months after the
date of issuance or (b) the Final Maturity Date. Each Letter of
Credit and each draft accepted under a Letter of Credit shall be in
such form and minimum amount, and shall contain such terms, as the
Letter of Credit Issuer and the Company may agree upon at the time
such Letter of Credit is issued.
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2.3.4. Lenders' Participation in Letters of Credit.
Upon the issuance of any Letter of Credit, a participation therein, in
an amount equal to each Lender's Percentage Interest in the Revolving
Loan, shall automatically be deemed granted by the Letter of Credit
Issuer to each such Lender on the date of such issuance and such
Lenders shall automatically be obligated, as set forth in Section
10.4, to reimburse the Letter of Credit Issuer to the extent of their
respective Percentage Interests in the Revolving Loan for all
obligations incurred by the Letter of Credit Issuer to third parties
in respect of such Letter of Credit not reimbursed by the Company.
The Letter of Credit Issuer will send to each Lender (and the Managing
Agent if the Letter of Credit Issuer is not the Managing Agent) a
confirmation regarding the participations in Letters of Credit
outstanding during such month.
2.3.5. Presentation. The Letter of Credit Issuer may
accept or pay any draft presented to it, regardless of when drawn and
whether or not negotiated, if such draft, the other required documents
and any transmittal advice are presented to the Letter of Credit
Issuer and dated on or before the expiration date of the Letter of
Credit under which such draft is drawn. Except insofar as a
particular Letter of Credit contains express, contrary instructions,
the Letter of Credit Issuer may honor as complying with the terms of
any Letter of Credit and with this Agreement any drafts or other
documents otherwise in order signed or issued by an administrator,
executor, conservator, trustee in bankruptcy, debtor in possession,
assignee for benefit of creditors, liquidator, receiver or other legal
representative of the party authorized under such Letter of Credit to
draw or issue such drafts or other documents.
2.3.6. Payment of Drafts. At such time as a Letter of
Credit Issuer makes any payment on a draft presented or accepted under
a Letter of Credit, the Company will on demand pay to such Letter of
Credit Issuer in immediately available funds the amount of such
payment. Unless the Company shall otherwise pay to the Letter of
Credit Issuer the amount required by the foregoing sentence, such
amount shall be considered a loan under Section 2.1.1 and part of the
Revolving Loan as if the Company had paid in full the amount required
with respect to the Letter of Credit by borrowing such amount under
Section 2.1.1.
2.3.7. Uniform Customs and Practice. The Uniform
Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500, and any
subsequent revisions thereof approved by a Congress of the
International Chamber of Commerce and adhered to by the Letter of
Credit Issuer (the "Uniform Customs and Practice"), shall be binding
on the Company and the Letter of Credit Issuer except to the extent
otherwise provided herein, in any Letter of Credit or in any other
Credit Document. Anything in the Uniform Customs and Practice to the
contrary notwithstanding:
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(a) Neither the Company nor any beneficiary of any
Letter of Credit shall be deemed an agent of any Letter of Credit
Issuer.
(b) With respect to each Letter of Credit, neither the
Letter of Credit Issuer nor its correspondents shall be responsible
for or shall have any duty to ascertain (unless the Letter of Credit
Issuer or such correspondent is grossly negligent or willful in
failing so to ascertain):
(i) the genuineness of any signature;
(ii) the validity, form, sufficiency,
accuracy, genuineness or legal effect of any endorsements;
(iii) delay in giving, or failure to give,
notice of arrival, notice of refusal of documents or of
discrepancies in respect of which any Letter of Credit
Issuer refuses the documents or any other notice, demand or
protest;
(iv) the performance by any beneficiary under
any Letter of Credit of such beneficiary's obligations to
the Company;
(v) inaccuracy in any notice received by the
Letter of Credit Issuer;
(vi) the validity, form, sufficiency,
accuracy, genuineness or legal effect of any instrument,
draft, certificate or other document required by such Letter
of Credit to be presented before payment of a draft if such
instrument, draft, certificate or other document appears on
its face to comply with the requirements of the Letter of
Credit, or the office held by or the authority of any Person
signing any of the same; or
(vii) failure of any instrument to bear any
reference or adequate reference to such Letter of Credit, or
failure of any Person to note the amount of any instrument
on the reverse of such Letter of Credit or to surrender such
Letter of Credit or to forward documents in the manner
required by such Letter of Credit.
(c) The occurrence of any of the events referred to in
the Uniform Customs and Practice or in the preceding clauses of this
Section 2.3.7 shall not affect or prevent the vesting of any of the
Letter of Credit Issuer's rights or powers hereunder or the Company's
obligation to make reimbursement of amounts paid under any Letter of
Credit or any draft accepted thereunder.
(d) The Company will promptly examine (i) each Letter
of Credit (and any amendments thereof) sent to it by the Letter of
Credit Issuer and (ii) all instruments and
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documents delivered to it from time to time by the Letter of Credit
Issuer. The Company will notify the Letter of Credit Issuer of any
claim of noncompliance by notice actually received within three
Banking Days after receipt of any of the foregoing documents, the
Company being conclusively deemed to have waived any such claim
against such Letter of Credit Issuer and its correspondents unless
such notice is given. The Letter of Credit Issuer shall have no
obligation or responsibility to send any such Letter of Credit or any
such instrument or document to the Company.
(e) In the event of any conflict between the provisions
of this Agreement and the Uniform Customs and Practice, the provisions
of this Agreement shall govern.
2.3.8. Subrogation. Upon any payment by a Letter of
Credit Issuer under any Letter of Credit and until the reimbursement
of such Letter of Credit Issuer by the Company with respect to such
payment, the Letter of Credit Issuer shall be entitled to be
subrogated to, and to acquire and retain, the rights which the Person
to whom such payment is made may have against the Company, all for the
benefit of the Lenders. The Company will take such action as the
Letter of Credit Issuer may reasonably request, including requiring
the beneficiary of any Letter of Credit to execute such documents as
the Letter of Credit Issuer may reasonably request, to assure and
confirm to the Letter of Credit Issuer such subrogation and such
rights, including the rights, if any, of the beneficiary to whom such
payment is made in accounts receivable, inventory and other properties
and assets of any Obligor.
2.3.9. Modification, Consent, etc. If the Company
requests or consents in writing to any modification or extension of
any Letter of Credit, or waives any failure of any draft, certificate
or other document to comply with the terms of such Letter of Credit,
and if the Letter of Credit Issuer consents thereto, the Letter of
Credit Issuer shall be entitled to rely on such request, consent or
waiver. This Agreement shall be binding upon the Company with respect
to such Letter of Credit as so modified or extended, and with respect
to any action taken or omitted by such Letter of Credit Issuer
pursuant to any such request, consent or waiver.
2.4. Application of Proceeds.
2.4.1. Revolving Loan. Subject to Section 2.4.4, the
Company will apply the proceeds of the Revolving Loan for the
construction and acquisition of Towers, working capital and other
lawful corporate purposes of the Company and its Subsidiaries.
2.4.2. Term Loan. The Company will apply the proceeds
of the Term Loan to refinance existing senior Financing Debt, to
acquire Towers from Prime in the Prime Acquisition and to make Capital
Expenditures relating to leasehold improvements.
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2.4.3. Letters of Credit. Letters of Credit shall be
issued only for such lawful corporate purposes as the Company has
requested in writing.
2.4.4. Specifically Prohibited Applications. The
maximum principal amount of all Financing Debt, including the Credit
Obligations, the proceeds of which are directly or indirectly used to
finance the construction of Towers, shall not exceed $4,000,000 at any
one time outstanding. The Company will not, directly or indirectly,
apply any part of the proceeds of any extension of credit made
pursuant to the Credit Documents (a) to purchase or to carry Margin
Stock or (b) to any transaction prohibited by the Foreign Trade
Regulations, by other Legal Requirements applicable to the Lenders or
by the Credit Documents or (c) to finance, directly or indirectly, any
acquisition of a Tower Company that has not been approved by such
Tower Company's Board of Directors (or similar governing body). The
Company will apply the proceeds of the Credit Obligations only for
business and commercial purposes and not for personal, family,
household or agricultural use.
2.5. Nature of Obligations of Lenders to Make Extensions of
Credit. The Lenders' obligations to extend credit under this Agreement are
several and are not joint or joint and several. If on any Closing Date any
Lender shall fail to perform its obligations under this Agreement, the
aggregate amount of Commitments to make the extensions of credit under this
Agreement shall be reduced by the amount of unborrowed Commitment of the Lender
so failing to perform and the Percentage Interests shall be appropriately
adjusted. Lenders that have not failed to perform their obligations to make
the extensions of credit contemplated by Section 2 may, if any such Lender so
desires, assume, in such proportions as such Lenders may agree, the obligations
of any Lender who has so failed and the Percentage Interests shall be
appropriately adjusted. The provisions of this Section 2.5 shall not affect
the rights of the Company against any Lender failing to perform its obligations
hereunder.
3. Interest; Eurodollar Pricing Options; Fees.
3.1. Interest. The Loan shall accrue and bear interest at a rate
per annum which shall at all times equal the Applicable Rate. Prior to any
stated or accelerated maturity of the Loan, the Company will, on each Payment
Date, pay the accrued and unpaid interest on the portion of the Loan which was
not subject to a Eurodollar Pricing Option. On the last day of each Eurodollar
Interest Period or on any earlier termination of any Eurodollar Pricing Option,
the Company will pay the accrued and unpaid interest on the portion of the Loan
which was subject to the Eurodollar Pricing Option which expired or terminated
on such date. In the case of any Eurodollar Interest Period longer than three
months, the Company will also pay the accrued and unpaid interest on the
portion of the Loan subject to the Eurodollar Pricing Option having such
Eurodollar Interest Period at three-month intervals, the first such payment to
be made on the last Banking Day of the three-month period which begins on the
first day of such Eurodollar Interest Period. On the stated or any accelerated
maturity of the
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Loan, the Company will pay all accrued and unpaid interest on the Loan,
including any accrued and unpaid interest on any portion of the Loan which is
subject to a Eurodollar Pricing Option. All payments of interest hereunder
shall be made to the Managing Agent for the account of each Lender in
accordance with such Lender's Percentage Interest.
3.2. Eurodollar Pricing Options.
3.2.1. Election of Eurodollar Pricing Options. Subject
to all of the terms and conditions hereof and so long as no Default
exists, the Company may from time to time, by irrevocable notice to
the Managing Agent actually received not less than three Banking Days
prior to the commencement of the Eurodollar Interest Period selected
in such notice, elect to have such portion of the Loan as the Company
may specify in such notice accrue and bear interest during the
Eurodollar Interest Period so selected at the Applicable Rate computed
on the basis of the Eurodollar Rate. In the event the Company at any
time fails to elect a Eurodollar Pricing Option under this Section
3.2.1 for any portion of the Loan (upon termination of a Eurodollar
Pricing Option or otherwise), then such portion of the Loan will
accrue and bear interest at the Applicable Rate based on the Base
Rate. No election of a Eurodollar Pricing Option shall become
effective:
(a) if, prior to the commencement of any such
Eurodollar Interest Period, the Managing Agent determines that (i) the
electing or granting of the Eurodollar Pricing Option in question
would violate a Legal Requirement, (ii) Eurodollar deposits in an
amount comparable to the principal amount of the Loan as to which such
Eurodollar Pricing Option has been elected and which have a term
corresponding to the proposed Eurodollar Interest Period are not
readily available in the inter-bank Eurodollar market, or (iii) by
reason of circumstances affecting the inter-bank Eurodollar market,
adequate and reasonable methods do not exist for ascertaining the
interest rate applicable to such deposits for the proposed Eurodollar
Interest Period; or
(b) if the Required Lenders shall have advised the
Managing Agent by telephone or otherwise at or prior to noon (Boston
time) on the second Banking Day prior to the commencement of such
proposed Eurodollar Interest Period (and shall have subsequently
confirmed in writing) that, after reasonable efforts to determine the
availability of such Eurodollar deposits, the Required Lenders
reasonably anticipate that Eurodollar deposits in an amount equal to
the Percentage Interest of the Required Lenders in the portion of the
Loan as to which such Eurodollar Pricing Option has been elected and
which have a term corresponding to the Eurodollar Interest Period in
question will not be offered in the Eurodollar market to the Required
Lenders at a rate of interest that does not exceed the anticipated
Eurodollar Basic Rate.
3.2.2. Notice to Lenders and Company. The Managing
Agent will promptly inform each Lender (by telephone or otherwise) of
each notice received by it from the
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Company pursuant to Section 3.2.1 and of the Eurodollar Interest
Period specified in such notice. Upon determination by the Managing
Agent of the Eurodollar Rate for such Eurodollar Interest Period or in
the event such election shall not become effective, the Managing Agent
will promptly notify the Company and each Lender (by telephone or
otherwise) of the Eurodollar Rate so determined or why such election
did not become effective, as the case may be.
3.2.3. Selection of Eurodollar Interest Periods.
Eurodollar Interest Periods shall be selected so that:
(a) the minimum portion of the Loan subject to any
Eurodollar Pricing Option shall be $500,000 and an integral multiple
of $100,000;
(b) no more than 12 Eurodollar Pricing Options shall be
outstanding at any one time;
(c) a portion of the Term Loan equal to or greater than
the amount of the next mandatory prepayment required by Section 4.2
shall not be subject to a Eurodollar Pricing Option on the date such
mandatory prepayment is required to be made;
(d) no Eurodollar Interest Period with respect to any
part of the Loan subject to a Eurodollar Pricing Option shall expire
later than the Final Maturity Date; and
(e) prior to the date the Managing Agent informs the
Company that the proposed syndication of the credit facilities
provided hereby will close, no Eurodollar Interest Period shall extend
beyond the earlier of (i) such syndication closing date or (ii)
December 11, 1996, except with the written consent of the Managing
Agent. The Company and the Managing Agent shall confer about the
appropriate scheduling of the selection of Eurodollar Interest Periods
to facilitate the anticipated syndication of the credit facilities
provided herein to other Lenders.
3.2.4. Additional Interest. If any portion of the Loan
subject to a Eurodollar Pricing Option is repaid, or any Eurodollar
Pricing Option is terminated for any reason (including acceleration of
maturity), on a date which is prior to the last Banking Day of the
Eurodollar Interest Period applicable to such Eurodollar Pricing
Option, the Company will pay to the Managing Agent for the account of
each Lender in accordance with such Lender's Percentage Interest, in
addition to any amounts of interest otherwise payable hereunder, an
amount equal to the present value (calculated in accordance with this
Section 3.2.4) of interest for the unexpired portion of such
Eurodollar Interest Period on the portion of the Loan so repaid, or as
to which a Eurodollar Pricing Option was so terminated, at a per annum
rate equal to the excess, if any, of (a) the rate applicable to such
Eurodollar Pricing Option minus (b) the then current Eurodollar Basic
Rate for a deemed Eurodollar Interest Period having a maturity date
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approximating the last Banking Day of such Eurodollar Interest Period.
The present value of such additional interest shall be calculated by
discounting the amount of such interest for each day in the unexpired
portion of such Eurodollar Interest Period from such day to the date
of such repayment or termination at a per annum interest rate equal to
the interest rate determined pursuant to clause (b) of the preceding
sentence, and by adding all such amounts for all such days during such
period. The determination by the Managing Agent of such amount of
interest shall, in the absence of manifest error, be conclusive. For
purposes of this Section 3.2.4, if any portion of the Loan which was
to have been subject to a Eurodollar Pricing Option is not outstanding
on the first day of the Eurodollar Interest Period applicable to such
Eurodollar Pricing Option other than for reasons described in Section
3.2.1, the Company shall be deemed to have terminated such Eurodollar
Pricing Option.
3.2.5. Violation of Legal Requirements. If any Legal
Requirement shall prevent any Lender from funding or maintaining
through the purchase of deposits in the interbank Eurodollar market
any portion of the Loan subject to a Eurodollar Pricing Option or
otherwise from giving effect to such Lender's obligations as
contemplated by Section 3.2, (a) the Managing Agent may by notice to
the Company terminate all of the affected Eurodollar Pricing Options,
(b) the portion of the Loan subject to such terminated Eurodollar
Pricing Options shall immediately bear interest thereafter at the
Applicable Rate computed on the basis of the Base Rate and (c) the
Company shall make any payment required by Section 3.2.4.
3.2.6. Funding Procedure. The Lenders may fund any
portion of the Loan subject to a Eurodollar Pricing Option out of any
funds available to the Lenders. Regardless of the source of the funds
actually used by any of the Lenders to fund any portion of the Loan
subject to a Eurodollar Pricing Option, however, all amounts payable
hereunder, including the interest rate applicable to any such portion
of the Loan and the amounts payable under Sections 3.2.4 and 3.5,
shall be computed as if each Lender had actually funded such Lender's
Percentage Interest in such portion of the Loan through the purchase
of deposits in such amount of the type by which the Eurodollar Basic
Rate was determined with a maturity the same as the applicable
Eurodollar Interest Period relating thereto and through the transfer
of such deposits from an office of the Lender having the same location
as the applicable Eurodollar Office to one of such Lender's offices in
the United States of America.
3.3. Commitment Fees. In consideration of the Lenders'
commitments to make the extensions of the Revolving Loan provided for in
Section 2.1, while such commitments are outstanding, the Company will pay to
the Managing Agent for the account of the Lenders in accordance with the
Lenders' respective Commitments in the Revolving Loan, on each Payment Date and
on the Final Maturity Date, an amount equal to interest computed at the
Commitment Fee Rate on the amount by which (a) the average daily Maximum Amount
of Revolving Credit during the three-month period or portion thereof ending on
such Payment
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Date exceeded (b) the sum of (i) the average daily Revolving Loan during such
period or portion thereof plus (ii) the average daily Letter of Credit Exposure
during such period or portion thereof; provided, however, that the first such
payment shall be for the period beginning on the date hereof and ending on the
first Payment Date.
3.4. Letter of Credit Fees. The Company will pay to the Managing
Agent for the account of each of the Lenders, in accordance with the Lenders'
respective Percentage Interests, on each Payment Date, a Letter of Credit fee
equal to interest at a per annum rate equal to the Applicable Margin applicable
to Eurodollar Pricing Options on the average daily Letter of Credit Exposure
during the three-month period or portion thereof ending on such Payment Date.
The Company will pay to the Letter of Credit Issuer customary service charges
and expenses for its services in connection with the Letters of Credit at the
times and in the amounts from time to time in effect in accordance with its
general rate structure, including fees and expenses relating to issuance,
amendment, negotiation, cancellation and similar operations.
3.5. Changes in Circumstances; Yield Protection.
3.5.1. Reserve Requirements, etc. If any Legal
Requirement shall (a) impose, modify, increase or deem applicable any
insurance assessment, reserve, special deposit or similar requirement
against any Funding Liability or the Letters of Credit, (b) impose,
modify, increase or deem applicable any other requirement or condition
with respect to any Funding Liability or the Letters of Credit, or (c)
change the basis of taxation of Funding Liabilities or payments in
respect of any Letter of Credit (other than changes in the rate of
taxes measured by the overall net income of such Lender) and the
effect of any of the foregoing shall be to increase the cost to any
Lender of issuing, making, funding or maintaining its respective
Percentage Interest in any portion of the Loan subject to a Eurodollar
Pricing Option or any Letter of Credit, to reduce the amounts received
or receivable by such Lender under this Agreement or to require such
Lender to make any payment or forego any amounts otherwise payable to
such Lender under this Agreement (other than any Tax or any reserves
that are included in computing the Eurodollar Reserve Rate), then such
Lender may claim compensation from the Company under Section 3.5.5.
3.5.2. Taxes. All payments of the Credit Obligations
shall be made without set-off or counterclaim and free and clear of
any deductions, including deductions for Taxes, unless the Company is
required by law to make such deductions. If (a) any Lender shall be
subject to any Tax with respect to any payment of the Credit
Obligations or its obligations hereunder or (b) the Company shall be
required to withhold or deduct any Tax on any payment on the Credit
Obligations, then such Lender may claim compensation from the Company
under Section 3.5.5. Whenever Taxes must be withheld by the Company
with respect to any payments of the Credit Obligations, the Company
shall promptly furnish to the Managing Agent for the
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account of the applicable Lender official receipts (to the extent that
the relevant governmental authority delivers such receipts) evidencing
payment of any such Taxes so withheld. If the Company fails to pay
any such Taxes when due or fails to remit to the Managing Agent for
the account of the applicable Lender the required receipts evidencing
payment of any such Taxes so withheld or deducted, the Company shall
indemnify the affected Lender for any incremental Taxes and interest
or penalties that may become payable by such Lender as a result of any
such failure. In the event any Lender receives a refund of any Taxes
for which it has received payment from the Company under this Section
3.5.2, such Lender shall promptly pay the amount of such refund to the
Company, together with any interest thereon actually earned by such
Lender.
3.5.3. Capital Adequacy. If any Lender shall determine
that compliance by such Lender with any Legal Requirement regarding
capital adequacy of banks or bank holding companies has or would have
the effect of reducing the rate of return on the capital of such
Lender and its Affiliates as a consequence of such Lender's commitment
to make the extensions of credit contemplated hereby, or such Lender's
maintenance of the extensions of credit contemplated hereby, to a
level below that which such Lender could have achieved but for such
compliance (taking into consideration the policies of such Lender and
its Affiliates with respect to capital adequacy immediately before
such compliance and assuming that the capital of such Lender and its
Affiliates was fully utilized prior to such compliance and unless the
effect of such event is already reflected in the Applicable Rate) by
an amount deemed by such Lender to be material, then such Lender may
claim compensation from the Company under Section 3.5.5.
3.5.4. Regulatory Changes. If any Lender shall
determine that (a) any change in any Legal Requirement (including any
new Legal Requirement) after the date hereof shall directly or
indirectly (i) reduce the amount of any sum received or receivable by
such Lender with respect to the Loan or the Letters of Credit or the
return to be earned by such Lender on the Loan or the Letters of
Credit, (ii) impose a cost on such Lender or any Affiliate of such
Lender that is attributable to the making or maintaining of, or such
Lender's commitment to make, its portion of the Loan or the Letters of
Credit, or (iii) require such Lender or any Affiliate of such Lender
to make any payment on, or calculated by reference to, the gross
amount of any amount received by such Lender under any Credit Document
(other than Taxes or income or franchise taxes), and (b) such
reduction, increased cost or payment shall not be fully compensated
for by an adjustment in the Applicable Rate or the Letter of Credit
fees, then such Lender may claim compensation from the Company under
Section 3.5.5.
3.5.5. Compensation Claims. Within 15 days after the
receipt by the Company of a certificate from any Lender setting forth
why it is claiming compensation under this Section 3.5 and
computations (in reasonable detail) of the amount thereof, the Company
shall pay to such Lender such additional amounts as such Lender sets
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forth in such certificate as sufficient fully to compensate it on
account of the foregoing provisions of this Section 3.5, together with
interest on such amount from the 15th day after receipt of such
certificate until payment in full thereof at the Overdue Reimbursement
Rate. The determination by such Lender of the amount to be paid to it
and the basis for computation thereof hereunder shall, in the absence
of manifest error, be conclusive, so long as such computation is
reasonable. In determining such amount, such Lender may use any
reasonable averaging and attribution methods. The Company shall be
entitled to replace any such Lender in accordance with Section 11.3.
3.5.6. Mitigation. Each Lender shall take such
commercially reasonable steps as it may determine are not
disadvantageous to it, including changing lending offices to the
extent feasible, in order to reduce amounts otherwise payable by the
Company to such Lender pursuant to Sections 3.2.4 and 3.5 or to make
Eurodollar Pricing Options available under Sections 3.2.1 and 3.2.5.
In addition, the Company shall not be responsible for costs (a) under
Section 3.5 arising more than 90 days prior to receipt by the Company
of the certificate from the affected Lender pursuant to such Section
3.5 or (b) under Section 3.2.4 arising from the termination of
Eurodollar Pricing Options more than 90 days prior to the demand by
the Managing Agent for payment under Section 3.2.4.
3.6. Computations of Interest and Fees. For purposes of this
Agreement, interest, commitment fees and Letter of Credit fees (and any other
amount expressed as interest or such fees) shall be computed on the basis of a
365-day year for actual days elapsed; provided, however, that interest based on
the Eurodollar Rate shall be computed on the basis of a 360-day year for actual
days elapsed. If any payment required by this Agreement becomes due on any day
that is not a Banking Day, such payment shall, except as otherwise provided in
the Eurodollar Interest Period, be made on the next succeeding Banking Day. If
the due date for any payment of principal is extended as a result of the
immediately preceding sentence, interest shall be payable for the time during
which payment is extended at the Applicable Rate.
4. Payment.
4.1. Payment at Maturity. On the Final Maturity Date or any
accelerated maturity of the Loan, the Company will pay to the Managing Agent
for the account of the Lenders an amount equal to the Loan then due, together
with all accrued and unpaid interest and fees with respect thereto and all
other Credit Obligations then outstanding.
4.2. Scheduled Required Prepayments. On January 1, 1999 and each
Payment Date set forth below, the Company will pay to the Managing Agent for
the account of the Lenders as a prepayment of the Term Loan the lesser of (a)
the amount set forth in such table or (b) the principal amount of the Term Loan
then outstanding.
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Payment Date Amount
------------ ------
January 1, 1999 $ 925,000
March 31, 1999 $1,156,250
June 30, 1999 $1,156,250
September 30, 1999 $1,156,250
December 31, 1999 $1,156,250
March 31, 2000 $1,850,000
June 30, 2000 $1,850,000
September 30, 2000 $1,850,000
December 31, 2000 $1,850,000
March 31, 2001 $1,850,000
June 30, 2001 $1,850,000
September 30, 2001 $1,850,000
December 31, 2001 $1,850,000
March 31, 2002 $2,312,500
June 30, 2002 $2,312,500
September 30, 2002 $2,312,500
December 31, 2002 $2,312,500
March 31, 2003 $2,466,667
June 30, 2003 $2,466,667
Final Maturity Date $2,446,666
4.3. Contingent Required Prepayments.
4.3.1. Excess Credit Exposure. If at any time the
Revolving Loan exceeds the limits set forth in Section 2.1, the
Company shall within one Banking Day pay the amount of such excess to
the Managing Agent for the account of the Lenders. If at any time the
Letter of Credit Exposure exceeds the limits set forth in Section 2.3,
the Company shall within one Banking Day pay the amount of such excess
to the Managing Agent for the account of the Lenders to be applied as
provided in Section 4.5.
4.3.2. Excess Cash Flow. Within 120 days after the end
of each fiscal year of the Company, commencing on the date 120 days
after the end of the fiscal year ending December 31, 1999, the Company
shall prepay the Loan, to be applied as provided in Section 4.6.2, in
an amount equal to the lesser of (a) the ECF Prepayment Percentage of
Consolidated Excess Cash Flow for its most recently completed fiscal
year or (b) the amount of the Loan.
4.3.3. Net Asset Sale Proceeds. Upon receipt by the
Company or any of its Subsidiaries of Net Asset Sale Proceeds, the
Company shall within three Banking Days pay to the Managing Agent as a
prepayment of the Loan to be applied as provided in
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Section 4.6.2 the lesser of (a) the amount of such Net Asset Sale
Proceeds or (b) the amount of the Loan.
4.3.4. Net Debt Proceeds. Within five days prior to
the incurrence by the Parent, ATC Holdings, the Company or any of the
Company's Subsidiaries of Designated Financing Debt, the Company shall
provide written notice to the Lenders of the closing date for such
Designated Financing Debt and the amount of the Net Debt Proceeds.
Within three Banking Days after the incurrence of such Designated
Financing Debt, the Company shall pay to the Managing Agent as a
prepayment of the Loan to be applied as provided in Section 4.6.2 the
lesser of (a) the amount of such Net Debt Proceeds or (b) the amount
of the Loan.
4.3.5. Net Equity Proceeds. Within three Banking Days
after the receipt by the Parent, ATC Holdings, the Company or any of
the Company's Subsidiaries of Net Equity Proceeds, the Company shall
pay to the Managing Agent as a prepayment of the Loan to be applied as
provided in Section 4.6.2 the lesser of (a) an amount equal to 70% of
such Net Equity Proceeds or (b) the amount of the Loan.
4.4. Voluntary Prepayments. In addition to the prepayments
required by Sections 4.2 and 4.3, the Company may from time to time prepay all
or any portion of the Loan (in a minimum amount of $100,000 and an integral
multiple of $10,000, or such lesser amount as is then outstanding), without
premium or penalty of any type (except as provided in Section 3.2.4 with
respect to the early termination of Eurodollar Pricing Options). The Company
shall give the Managing Agent at least one Banking Day prior notice of its
intention to prepay, specifying the date of payment, the total amount of the
Loan to be paid on such date and the amount of interest to be paid with such
prepayment.
4.5. Letters of Credit. If on the Final Maturity Date or any
accelerated maturity of the Credit Obligations the Lenders shall be obligated
in respect of a Letter of Credit or a draft accepted under a Letter of Credit,
the Company will either:
(a) prepay such obligation by depositing with the
Managing Agent an amount of cash, or
(b) deliver to the Managing Agent a standby letter of
credit (designating the Managing Agent as beneficiary and issued by a
bank and on terms reasonably acceptable to the Managing Agent),
in each case in an amount equal to the portion of the then Letter of Credit
Exposure issued for the account of the Company. Any such cash so deposited and
the cash proceeds of any draw under any standby Letter of Credit so furnished,
including any interest thereon, shall be returned by the Managing Agent to the
Company only when, and to the extent that, the amount of such cash held by the
Managing Agent exceeds the Letter of Credit Exposure at such time
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and no Default then exists; provided, however, that if an Event of Default
occurs and the Credit Obligations become or are declared immediately due and
payable, the Managing Agent may apply such cash, including any interest
thereon, to the payment of any of the Credit Obligations as provided in section
2.5.6 of the Security Agreement.
4.6. Reborrowing; Application of Payments, etc.
4.6.1. Reborrowing. The amounts of the Revolving Loan
prepaid pursuant to Section 4.4 may be reborrowed from time to time
prior to the Conversion Date in accordance with Section 2.1, subject
to the limits set forth therein. No portion of the Term Loan prepaid
hereunder may be reborrowed.
4.6.2. Order of Application. Prepayments made pursuant
to Sections 4.3.2, 4.3.3, 4.3.4 or 4.3.5 shall be applied first to the
Term Loan, with any balance as a payment of, and (regardless of
whether any portion of the Revolving Loan is then outstanding)
reduction of availability under, the Revolving Loan. Prepayments of
the Term Loan made pursuant to Sections 4.3.2 (Excess Cash Flow) and
4.3.3 (Asset Sales) shall be applied to the installments required to
be made pursuant to Section 4.2 (a) 50% pro rata in the chronological
order thereof, then (b) 50% in the inverse order of maturity thereof.
Prepayments of the Term Loan made pursuant to Sections 4.3.4 (Debt
Proceeds) and 4.3.5 (Equity Proceeds) shall be applied to the
installments required to be made pursuant to Section 4.2 in the
inverse order of maturity thereof. Any prepayment of the Loan shall be
applied first to the portion of the Loan not then subject to
Eurodollar Pricing Options, then the balance of any such prepayment
shall be applied to the portion of the Loan then subject to Eurodollar
Pricing Options, in the chronological order of the respective
maturities thereof (or as the Company may otherwise specify in
writing), together with any payments required by Section 3.2.4.
4.6.3. Payment with Accrued Interest, etc. Upon all
prepayments of the Term Loan, the Company shall pay to the Managing
Agent the principal amount to be prepaid, together with unpaid
interest in respect thereof accrued to the date of prepayment. Notice
of prepayment having been given in accordance with Section 4.4, and
whether or not notice is given of prepayments pursuant to Sections 4.2
and 4.3, the amount specified to be prepaid shall become due and
payable on the date specified for prepayment.
4.6.4. Payments for Lenders. All payments of principal
hereunder shall be made to the Managing Agent for the account of the
Lenders in accordance with the Lenders' respective Percentage
Interests.
5. Conditions to Extending Credit.
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5.1. Conditions on Initial Closing Date. The obligations of the
Lenders to make any extension of credit pursuant to Section 2 shall be subject
to the satisfaction, on or before the Initial Closing Date, of the conditions
set forth in this Section 5.1 as well as the further conditions in Section 5.2.
If the conditions set forth in this Section 5.1 are not met on or prior to the
Initial Closing Date, the Lenders shall have no obligation to make any
extensions of credit hereunder.
5.1.1. Notes. The Company shall have duly executed and
delivered to the Managing Agent a Revolving Note and Term Note for
each Lender having a Percentage Interest therein.
5.1.2. Payment of Fees. The Company shall have paid to
the Managing Agent the fees contemplated by the separate agreement
between the Managing Agent and the Company dated on or prior to the
date hereof, as well as the reasonable fees and expenses of the
Managing Agent's special counsel.
5.1.3. Legal Opinions. On the Initial Closing Date,
the Lenders shall have received from the following counsel their
respective opinions with respect to the transactions contemplated by
the Credit Documents, which opinions shall be in form and substance
satisfactory to the Required Lenders:
(a) ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special counsel for the
Company and its Subsidiaries.
(b) Ropes & ▇▇▇▇, special counsel for the Managing
Agent.
The Company authorizes and directs its counsel to furnish
the foregoing opinions.
5.1.4. Security Agreement. Each of the Company and the
Company's Subsidiaries shall have duly authorized, executed and
delivered to the Managing Agent an amended and restated Security
Agreement in substantially the form of Exhibit 5.1.4.
5.1.5. Perfection of Security. Each Obligor shall have
duly authorized, executed, acknowledged, delivered, filed, registered
and recorded such security agreements, notices, financing statements
and other instruments as the Collateral Agent or the Managing Agent
may have requested in order to perfect the Liens purported or required
pursuant to the Credit Documents to be created in the Credit Security
and shall have paid all filing or recording fees or taxes required to
be paid in connection therewith, including any recording, mortgage,
documentary, transfer or intangible taxes. The Company and its
Subsidiaries shall have duly authorized, executed, acknowledged and
delivered to the Collateral Agent a mortgage on each Designated Real
Property owned by the Company and its Subsidiaries and a leasehold
mortgage on
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each Designated Real Property leased by the Company and its
Subsidiaries, with a landlord's consent and waiver and any other
documents required to allow for the recording or filing of a leasehold
mortgage, in each case in form and substance satisfactory to the
Collateral Agent or the Managing Agent.
5.1.6. Master Subordination Agreement. Each of ▇▇▇
▇▇▇▇▇ Enterprises, the Prime Holders, Summit Capital, Inc. and certain
related Persons shall have duly authorized, executed and delivered to
the Managing Agent a Subordination Agreement in substantially the form
of Exhibit 5.1.6 (the "Master Subordination Agreement").
5.1.7. Guarantee Agreement. The Parent Guarantors, the
Company and each Subsidiary of the Company shall have duly authorized,
executed and delivered to the Managing Agent a Guarantee Agreement in
substantially the form of Exhibit 5.1.7 (the "Guarantee Agreement").
5.1.8. Parent Pledge Agreement. ATC Holdings, the
Company and the Agent shall have duly authorized, executed and
delivered to the Managing Agent a Pledge Agreement in substantially
the form of Exhibit 5.1.8 (the "Parent Pledge Agreement").
5.1.9. Prime Acquisition. Other than as consented to
by the Managing Agent in writing:
(a) The provisions of the Prime Acquisition Agreement
shall not have been amended, modified, waived or terminated.
(b) All of the representations and warranties of the
Prime Holders set forth in the Prime Acquisition Agreement shall be
complete and correct in all material respects on and as of the Initial
Closing Date with the same force and effect as though made on and as
of such date.
(c) All of the other conditions to the obligations of
the Company set forth in the Prime Acquisition Agreement shall have
been satisfied.
(d) Any material consent, authorization, order or
approval of any Person required in connection with the transactions
contemplated by the Prime Acquisition Agreement shall have been
obtained and shall be in full force and effect.
(e) All of the items required to be delivered under the
Prime Acquisition Agreement shall have been so delivered.
(f) Contemporaneously with the making by the Lenders of
the first extension of credit hereunder, the Lenders shall have
received a certificate of a Financial Officer
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of the Company to the effect that (i) the closing has occurred under
the Prime Acquisition Agreement, (ii) all communications towers owned
by Prime and its Subsidiaries immediately prior to the Prime
Acquisition shall have been contributed to the Company or one of its
Subsidiaries and (iii) each of the conditions set forth in this
Section 5.1.9 has been satisfied.
5.1.10. Solvency, etc. After giving effect to the
Prime Acquisition and the Credit Obligations, the Company and its
Subsidiaries, taken as a whole:
(a) will be solvent;
(b) will have assets having a fair saleable value in
excess of the amount required to pay their probable liability on their
existing debts as such debts become absolute and mature;
(c) have access to adequate capital for the conduct of
their business; and
(d) have the ability to pay their debts from time to
time incurred as such debts mature.
The Company shall have furnished to the Lenders a
certificate of a Financial Officer to such effect.
5.1.11. Banc One Documents. Contemporaneously with the
making by the Lenders of the first extension of credit hereunder, (a)
the Company shall have paid in full its $6,000,000 subordinated notes
due October 15, 2002 payable to Banc One, (b) Banc One shall have
released all collateral pledged to it by the Company and its
Subsidiaries and (c) Banc One and the Company shall leave entered into
an amendment to the Warrant Purchase Agreement dated October 12, 1994
among Banc One, the Parent, the Company and Gritz Tower Maintenance
Company in form and substance satisfactory to the Managing Agent.
5.1.12. Tower Information. The Company shall have
furnished to the Lenders a schedule, certified by a Financial Officer,
showing the location of all Towers, the name and address of the owner
of the real property on which each Tower is located and the
contribution by each Tower to Consolidated Revenues as then estimated
in good faith by the Company.
5.1.13. Proper Proceedings. This Agreement, each other
Credit Document and the transactions contemplated hereby and thereby
shall have been authorized by all necessary corporate or other
proceedings. All necessary consents, approvals and authorizations of
any governmental or administrative agency or any other Person of any
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of the transactions contemplated hereby or by any other Credit
Document shall have been obtained and shall be in full force and
effect.
5.1.14. General. All legal and corporate proceedings
in connection with the transactions contemplated by this Agreement
shall be satisfactory in form and substance to the Managing Agent and
the Managing Agent shall have received copies of all documents,
including certified copies of the Charter and By- Laws of the Company
and the other Obligors, records of corporate proceedings, certificates
as to signatures and incumbency of officers and opinions of counsel,
which the Managing Agent may have reasonably requested in connection
therewith, such documents where appropriate to be certified by proper
corporate or governmental authorities.
5.2. Conditions to Each Extension of Credit. The obligations of
the Lenders to make any extension of credit pursuant to Section 2 shall be
subject to the satisfaction, on or before the Closing Date for such extension
of credit, of the following conditions:
5.2.1. Officer's Certificate. The representations and
warranties contained in Section 7 shall be true and correct on and as
of such Closing Date with the same force and effect as though made on
and as of such date (except as to any representation or warranty which
refers to a specific earlier date); no Default shall exist on such
Closing Date prior to or immediately after giving effect to the
requested extension of credit; no Material Adverse Change shall have
occurred since December 31, 1995; and the Company shall have furnished
to the Managing Agent in connection with the requested extension of
credit a certificate to these effects, in substantially the form of
Exhibit 5.2.1, signed by a Financial Officer.
5.2.2. Legality, etc. The making of the requested
extension of credit shall not (a) subject any Lender to any penalty or
special tax (other than a Tax for which the Company is required to
reimburse the Lenders under Section 3.5), (b) be prohibited by any
Legal Requirement or (c) violate any credit restraint program of the
executive branch of the government of the United States of America,
the Board of Governors of the Federal Reserve System or any other
governmental or administrative agency so long as any Lender reasonably
believes that compliance therewith is in the best interests of such
Lender.
6. General Covenants. Each of the Company, the other Guarantors and the
Company covenants that, until all of the Credit Obligations shall have been
paid in full and until the Lenders' commitments to extend credit under this
Agreement and any other Credit Document shall have been irrevocably terminated,
the Company and its Subsidiaries will comply with the following provisions:
6.1. Taxes and Other Charges; Accounts Payable.
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6.1.1. Taxes and Other Charges. Each of the Company
and its Subsidiaries shall duly pay and discharge, or cause to be paid
and discharged, before the same becomes in arrears, all taxes,
assessments and other governmental charges imposed upon such Person
and its properties, sales or activities, or upon the income or profits
therefrom, as well as all claims for labor, materials or supplies
which if unpaid might by law become a Lien upon any of its property;
provided, however, that any such tax, assessment, charge or claim need
not be paid if the validity or amount thereof shall at the time be
contested in good faith by appropriate proceedings and if such Person
shall, in accordance with GAAP, have set aside on its books adequate
reserves with respect thereto; and provided, further, that each of the
Company and its Subsidiaries shall pay or bond, or cause to be paid or
bonded, all such taxes, assessments, charges or other governmental
claims immediately upon the commencement of proceedings to foreclose
any Lien which may have attached as security therefor (except to the
extent such proceedings have been dismissed or stayed).
6.1.2. Accounts Payable. Each of the Company and its
Subsidiaries shall promptly pay when due, or in conformity with
customary trade terms, all accounts payable incident to the operations
of such Person not referred to in Section 6.1.1; provided, however,
that any such accounts payable need not be paid if the validity or
amount thereof shall at the time be contested in good faith and if
such Person shall, in accordance with GAAP, have set aside on its
books adequate reserves with respect thereto.
6.2. Conduct of Business, etc.
6.2.1. Types of Business. The Company and its
Subsidiaries shall engage only in the business of (a) constructing,
owning and operating Towers (including rooftop Towers), leasing space
thereon to tenants and managing the construction of, ownership of and
leasing of space on communications towers for third parties, and (b)
other activities related thereto.
6.2.2. Maintenance of Properties. Each of the Company
and its Subsidiaries:
(a) shall keep its properties in such repair, working
order and condition, and shall from time to time make such repairs,
replacements, additions and improvements thereto as are necessary for
the efficient operation of its businesses and shall comply at all
times in all material respects with all material franchises, licenses
and leases to which it is party so as to prevent any loss or
forfeiture thereof or thereunder, except where (i) compliance is at
the time being contested in good faith by appropriate proceedings and
(ii) failure to comply with the provisions being contested has not
resulted, and does not create a reasonable risk of resulting, in the
aggregate in any Material Adverse Change; and
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(b) shall do all things necessary to preserve, renew
and keep in full force and effect and in good standing its legal
existence and authority necessary to continue its business; provided,
however, that this Section 6.2.2(b) shall not prevent the merger,
consolidation or liquidation of Subsidiaries permitted by Section
6.11.
6.2.3. Statutory Compliance. Each of the Company and
its Subsidiaries shall comply in all material respects with all valid
and applicable statutes, laws, ordinances, zoning and building codes
and other rules and regulations of the United States of America, of
the states and territories thereof and their counties, municipalities
and other subdivisions and of any foreign country or other
jurisdictions applicable to such Person, except where (a) compliance
therewith shall at the time be contested in good faith by appropriate
proceedings and (b) failure so to comply with the provisions being
contested has not resulted, and does not create a reasonable risk of
resulting, in the aggregate in any Material Adverse Change.
6.2.4. Compliance with Material Agreements. Each of
the Company and its Subsidiaries shall comply in all material respects
with the Material Agreements (to the extent not in violation of the
other provisions of this Agreement or any other Credit Document).
Without the prior written consent of the Required Lenders, no Material
Agreement shall be amended, modified, waived or terminated in any
manner that would have in any material respect an adverse effect on
the interests of the Lenders.
6.3. Insurance.
6.3.1. Property Insurance. Each of the Company and its
Subsidiaries shall keep its assets which are of an insurable character
insured by financially sound and reputable insurers against theft and
fraud and against loss or damage by fire, explosion and hazards
insured against by extended coverage to the extent, in amounts and
with deductibles at least as favorable as those generally maintained
by businesses of similar size engaged in similar activities.
6.3.2. Liability Insurance. Each of the Company and
its Subsidiaries shall maintain with financially sound and reputable
insurers insurance against liability for hazards, risks and liability
to persons and property, including product liability insurance, to the
extent, in amounts and with deductibles at least as favorable as those
generally maintained by businesses of similar size engaged in similar
activities; provided, however, that (a) it may effect workers'
compensation insurance or similar coverage with respect to operations
in any particular state or other jurisdiction through an insurance
fund operated by such state or jurisdiction or by meeting the
self-insurance requirements of such state or jurisdiction and (b) the
Company shall maintain a liability insurance policy for each of the
Towers consistent with past practice.
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6.4. Financial Statements and Reports. Each of the Company and
its Subsidiaries shall maintain a system of accounting in which correct entries
shall be made of all transactions in relation to their business and affairs in
accordance with generally accepted accounting practice. The fiscal year of the
Company and its Subsidiaries shall end on December 31 in each year and the
fiscal quarters of the Company and its Subsidiaries shall end on March 31, June
30, September 30 and December 31 in each year.
6.4.1. Annual Reports. The Company shall furnish to
the Lenders as soon as available, and in any event within 120 days
after the end of each fiscal year, the Consolidated and Consolidating
balance sheets of the Company and its Subsidiaries and of the Parent
and its Subsidiaries as at the end of such fiscal year, the
Consolidated and Consolidating statements of income and Consolidated
statements of changes in shareholders' equity and of cash flows of the
Company and its Subsidiaries and of the Parent and its Subsidiaries
for such fiscal year (all in reasonable detail) and together, in the
case of Consolidated financial statements, with comparative figures
for the immediately preceding fiscal year, all accompanied by:
(a) Reports of KPMG Peat Marwick LLP (or, if they cease
to be auditors of the Parent and its Subsidiaries, other independent
certified public accountants of recognized national standing
reasonably satisfactory to the Required Lenders), containing no
material qualification, to the effect that they have audited the
foregoing Consolidated financial statements in accordance with
generally accepted auditing standards and that such Consolidated
financial statements present fairly, in all material respects, the
financial position of the Company and its Subsidiaries and of the
Parent and its Subsidiaries at the dates thereof and the results of
their operations for the periods covered thereby in conformity with
GAAP.
(b) A certificate of the Company signed by a Financial
Officer to the effect that such officer has caused this Agreement to
be reviewed and has no knowledge of any Default, or if such officer
has such knowledge, specifying such Default and the nature thereof,
and what action the Company has taken, is taking or proposes to take
with respect thereto.
(c) Computations by the Company comparing the financial
statements referred to above with the most recent budget for such
fiscal year furnished to the Lenders in accordance with Section 6.4.5.
(d) Computations by the Company in substantially the
form of Exhibit 6.4 demonstrating, as of the end of such fiscal year,
compliance with the Computation Covenants, certified by a Financial
Officer.
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(e) A schedule, certified by a Financial Officer,
showing as of the end of such fiscal year the location of all Towers,
the ownership of the real property on which each Tower is located and
the contribution by each Tower to Consolidated Revenues as then
estimated in good faith by the Company.
(f) Calculations, as at the end of such fiscal year, of
(i) the Accumulated Benefit Obligations for each Plan covered by Title
IV of ERISA (other than Multiemployer Plans) and (ii) the fair market
value of the assets of such Plan allocable to such benefits.
(g) Supplements to Exhibits 7.1, 7.3 and 7.13 and
exhibit 2.3 to the Security Agreement showing any changes in the
information set forth in such exhibits not previously furnished to the
Lenders in writing, as well as any changes in the Charter, Bylaws or
incumbency of officers of the Obligors from those previously certified
to the Managing Agent.
(h) In the event of a change in GAAP after December 31,
1995, computations by the Company, certified by a Financial Officer,
reconciling the financial statements referred to above with financial
statements prepared in accordance with GAAP as applied to the other
covenants in Section 6 and related definitions.
6.4.2. Quarterly Reports. The Company shall furnish to
the Lenders as soon as available and, in any event, within 45 days
after the end of each of the first three fiscal quarters of the
Company, the internally prepared Consolidated and Consolidating
balance sheets of the Company and its Subsidiaries as of the end of
such fiscal quarter and the Consolidated and Consolidating statements
of income of the Company and its Subsidiaries for such fiscal quarter
and for the portion of the fiscal year then ended (all in reasonable
detail) and together, in the case of Consolidated statements, with
comparative figures for the same period in the preceding fiscal year,
all accompanied by:
(a) A certificate of the Company signed by a Financial
Officer to the effect that such financial statements have been
prepared in accordance with GAAP and present fairly, in all material
respects, the financial position of the Company and its Subsidiaries
covered thereby at the dates thereof and the results of their
operations for the periods covered thereby, subject only to normal
year-end audit adjustments and the addition of footnotes.
(b) A certificate of the Company signed by a Financial
Officer to the effect that such officer has caused this Agreement to
be reviewed and has no knowledge of any Default, or if such officer
has such knowledge, specifying such Default and the nature thereof and
what action the Company has taken, is taking or proposes to take with
respect thereto.
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(c) Computations by the Company comparing the financial
statements referred to above with the most recent budget for the
period covered thereby furnished to the Lenders in accordance with
Section 6.4.5.
(d) Computations by the Company in substantially the
form of Exhibit 6.4 demonstrating, as of the end of such quarter,
compliance with the Computation Covenants, certified by a Financial
Officer.
(e) A schedule, certified by a Financial Officer,
showing as of the end of such fiscal quarter the location of all
Towers, the ownership of the real property on which each Tower is
located and the contribution by each Tower to Consolidated Revenues as
then estimated in good faith by the Company.
(f) Supplements to Exhibits 7.1, 7.3 and 7.13 and
exhibit 2.3 to the Security Agreement showing any changes in the
information set forth in such exhibits not previously furnished to the
Lenders in writing, as well as any changes in the Charter, Bylaws or
incumbency of officers of the Obligors from those previously certified
to the Managing Agent.
6.4.3. Monthly Reports. The Company shall furnish to
the Lenders as soon as available and, in any event, within 30 days
after the end of each month, the monthly management report of the
Company and its Subsidiaries in the form prepared by the Company's
management for its own internal purposes, which report shall include
at least an income statement and balance sheet for such month.
6.4.4. Future Towers. The Company will deliver to the
Managing Agent 15 Banking Days' (seven Banking Days' if the proposed
cost is less than $1,000,000 for any acquisition or series of related
acquisitions) prior written notice of the proposed acquisition of any
new Towers or Tower Companies or construction of any new Towers and
the proposed cost and projected revenue thereof (whether or not the
costs of such acquisition or construction are to be funded by the
Company from its own sources or from the proceeds of the Loan). Such
notice shall specify a description and the location of the new Towers
(including communications towers owned by Tower Companies), the name
and address of the owner of the real property on which they are
located, all due diligence material if the proposed cost exceeds
$1,000,000 for any acquisition or series of related acquisitions and
such other documents or information as the Required Lenders may
reasonably require.
6.4.5. Other Reports. The Company shall promptly
furnish to the Lenders:
(a) As soon as prepared and in any event within 30 days
after the beginning of each fiscal year, an annual budget and
operating projections for such fiscal year of
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the Company and its Subsidiaries, prepared in a manner consistent with
the manner in which the financial projections described in Section
7.2.1 were prepared.
(b) Any material updates of such budget and projections.
(c) Any management letters furnished to the Parent or
any of its Subsidiaries by the Company's auditors.
(d) All budgets, projections, statements of operations
and other reports furnished generally to the shareholders of the
Company or the Parent.
(e) Such registration statements, proxy statements and
reports, including Forms ▇-▇, ▇-▇, ▇-▇, ▇-▇, 10-K, 10-Q and 8-K, as
may be filed by the Company or the Parent or any of its Subsidiaries
with the Securities and Exchange Commission.
(f) Any 90-day letter or 30-day letter from the federal
Internal Revenue Service (or the equivalent notice received from state
or other taxing authorities) asserting tax deficiencies against the
Parent or any of its Subsidiaries.
6.4.6. Notice of Litigation, Defaults, etc. The
Company shall promptly furnish to the Lenders notice of any litigation
or any administrative or arbitration proceeding (a) which creates a
reasonable risk of resulting, after giving effect to any applicable
insurance, in the payment by the Company and its Subsidiaries of more
than $100,000 or (b) which results, or creates a reasonable risk of
resulting, in a Material Adverse Change. Promptly upon acquiring
knowledge thereof, the Company shall notify the Lenders of the
existence of any Default or Material Adverse Change, specifying the
nature thereof and what action the Company or any Subsidiary has
taken, is taking or proposes to take with respect thereto.
6.4.7. ERISA Reports. The Company shall furnish to the
Lenders as soon as available the following items with respect to any
Plan:
(a) any request for a waiver of the funding standards
or an extension of the amortization period,
(b) any reportable event (as defined in section 4043 of
ERISA), unless the notice requirement with respect thereto has been
waived by regulation,
(c) any notice received by any ERISA Group Person that
the PBGC has instituted or intends to institute proceedings to
terminate any Plan, or that any Multiemployer Plan is insolvent or in
reorganization,
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(d) notice of the possibility of the termination of any
Plan by its administrator pursuant to section 4041 of ERISA, and
(e) notice of the intention of any ERISA Group Person
to withdraw, in whole or in part, from any Multiemployer Plan.
6.4.8. Other Information. From time to time at
reasonable intervals upon request of any authorized officer of any
Lender, each of the Company and its Subsidiaries shall furnish to the
Lenders such other information regarding the business, assets,
financial condition, income or prospects of the Company and its
Subsidiaries as such officer may reasonably request, including copies
of all tax returns, licenses, agreements, leases and instruments to
which any of the Company or its Subsidiaries is party. The Lenders'
authorized officers and representatives shall have the right during
normal business hours upon reasonable notice and at reasonable
intervals to examine the books and records of the Company and its
Subsidiaries, to make copies and notes therefrom for the purpose of
ascertaining compliance with or obtaining enforcement of this
Agreement or any other Credit Document.
6.5. Certain Financial Tests.
6.5.1. Consolidated EBITDA to Consolidated Interest
Expense. For each period of four consecutive fiscal quarters of the
Company set forth in the table below, Consolidated EBITDA shall equal
or exceed the percentage set forth in the table below of Consolidated
Interest Expense.
Period Ending Percentage
-------------- ----------
March 31, 1997 175%
June 30, 1997 through
June 29, 1998 200%
June 30, 1998 and thereafter 250%
For the fiscal quarter ending December 31, 1996, 400% of Consolidated
EBITDA for such fiscal quarter shall equal or exceed 175% of 400% of
Consolidated Interest Expense for such fiscal quarter.
6.5.2. Consolidated Annualized EBITDA to Consolidated
Pro Forma Debt Service. On the last day of each fiscal quarter of the
Company, Consolidated Annualized EBITDA for such fiscal quarter shall
equal or exceed 125% of Consolidated Pro Forma Debt Service for the
12-month period beginning immediately after such date.
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6.5.3. Consolidated EBITDA to Consolidated Fixed
Charges. For each period of four consecutive fiscal quarters of the
Company, Consolidated EBITDA shall equal or exceed 115% of
Consolidated Fixed Charges; provided, however, that for the fiscal
quarter ending December 31, 1996, 400% of Consolidated EBITDA for such
fiscal quarter shall equal or exceed 115% of 400% of Consolidated
Fixed Charges for such fiscal quarter.
6.5.4. Consolidated Senior Debt to Consolidated
Annualized EBITDA. Consolidated Senior Debt shall not at any time
exceed the percentage set forth in the table below of Consolidated
Annualized EBITDA for the most recently completed fiscal quarter.
Period Ending Percentage
------------- ----------
Prior to June 30, 1997 450%
June 30, 1997 through
June 29, 1998 425%
June 30, 1998 through
June 29, 1999 350%
June 30, 1999 and thereafter 300%
6.5.5. Consolidated Total Debt to Consolidated
Annualized EBITDA. Consolidated Total Debt shall not at any time
exceed the percentage set forth in the table below of Consolidated
Annualized EBITDA for the most recently completed fiscal quarter.
Period Ending Percentage
------------- ----------
Prior to June 30, 1997 550%
June 30, 1997 through
June 29, 1998 500%
June 30, 1998 through
June 29, 1999 450%
June 30, 1999 and thereafter 400%
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6.5.6. Tower Construction Debt. The outstanding
principal amount of Financing Debt incurred by the Company and its
Subsidiaries for the construction of Towers shall at no time exceed
$4,000,000.
6.5.7. Consolidated Construction Capital Expenditures.
For each fiscal year of the Company, Consolidated Construction Capital
Expenditures shall not exceed the sum of the amount specified in the
table below plus the amount by which actual Consolidated Construction
Capital Expenditures in the previous fiscal year were less than the
amount specified in such table for such previous fiscal year:
Fiscal Year Amount
----------- ------
1996 $4,000,000
1997 $7,500,000
1998 $7,500,000
1999 $3,000,000
2000 and each year thereafter $2,000,000
6.5.8. Pledged Towers to Consolidated Revenues. For
each period of four consecutive fiscal quarters of the Company,
Pledged Towers as of the end of such period shall have contributed at
least 80% of Consolidated Revenues; provided, however, that for any
period ending prior to December 31, 1996, Pledged Towers may
contribute less than 80%, but not less than 60%, of Consolidated
Revenues.
6.6. Indebtedness. Neither the Company nor any of its
Subsidiaries shall create, incur, assume or otherwise become or remain liable
with respect to any Indebtedness (or become contractually committed do so),
except the following:
6.6.1. Indebtedness in respect of the Credit
Obligations.
6.6.2. Guarantees permitted by Section 6.7.
6.6.3. Current liabilities, other than Financing Debt,
incurred in the ordinary course of business.
6.6.4. To the extent that payment thereof shall not at
the time be required by Section 6.1, Indebtedness in respect of taxes,
assessments, governmental charges and claims for labor, materials and
supplies.
6.6.5. Indebtedness secured by Liens of carriers,
warehouses, mechanics and landlords permitted by Sections 6.8.5 and
6.8.6.
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6.6.6. Indebtedness in respect of judgments or awards
(a) which have been in force for less than the applicable appeal
period or (b) in respect of which the Company or any Subsidiary shall
at the time in good faith be prosecuting an appeal or proceedings for
review and, in the case of each of clauses (a) and (b), the Company or
such Subsidiary shall have taken appropriate reserves therefor in
accordance with GAAP and execution of such judgment or award shall not
be levied.
6.6.7. To the extent permitted by Section 6.8.8,
Indebtedness in respect of Capitalized Lease Obligations or secured by
purchase money security interests; provided, however, that the sum of
Indebtedness under this Section 6.6.7 plus Indebtedness under Section
6.6.8 at any one time outstanding shall not exceed $1,000,000.
6.6.8. Unsecured Indebtedness owing to sellers of
Towers and Tower Companies so long as (a) such Indebtedness is
subordinated to the Credit Obligations in a manner satisfactory to the
Required Lenders and (b) Indebtedness under this Section 6.6.8 plus
Indebtedness under Section 6.6.7 at any one time outstanding shall not
exceed $1,000,000.
6.6.9. Indebtedness in respect of (a) deferred taxes
arising in the ordinary course of business and (b) deferred insurance
expense financed for a period not to exceed 12 months.
6.6.10. Indebtedness in respect of inter-company loans
and advances among the Company and its Subsidiaries which are not
prohibited by Section 6.9.
6.6.11. ▇▇▇▇▇ Subordinated Debt, Prime Subordinated
Debt, Employee Trust Notes and other Subordinated Indebtedness.
6.6.12. Unfunded pension liabilities and obligations
with respect to Plans so long as the Company is in compliance with
Section 6.16.
6.6.13. Indebtedness (in addition to the foregoing)
outstanding on the date hereof and described in Exhibit 7.3 and
(except with respect to the Prior Credit Agreement and the
subordinated notes owing to BancOne, each of which shall be paid in
full on the Initial Closing Date) all renewals and extensions thereof
not in excess of the amount thereof outstanding immediately prior to
such renewal or extension.
6.6.14. Indebtedness (other than Financing Debt) in
addition to the foregoing; provided, however, that the aggregate
amount of all such Indebtedness at any one time outstanding shall not
exceed $100,000.
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6.7. Guarantees; Letters of Credit. Neither the Company nor any
of its Subsidiaries shall become or remain liable with respect to any
Guarantee, including reimbursement obligations, whether contingent or matured,
under letters of credit or other financial guarantees by third parties (or
become contractually committed do to so), except the following:
6.7.1. Letters of Credit and Guarantees of the Credit
Obligations.
6.7.2. Guarantees by the Company of Indebtedness and
other obligations incurred by its Subsidiaries and permitted by
Section 6.6.
6.7.3. Joint and several liability of the Company and
its Subsidiaries for the income taxes of the Parent and its
Subsidiaries filed by the Parent on a Consolidated basis for itself
and its Subsidiaries; provided, however, that payments of such taxes
by the Company and its Subsidiaries may be made only in the manner and
to the extent contemplated by Section 6.10.5.
6.8. Liens. Neither the Company nor any of its Subsidiaries
shall create, incur or enter into, or suffer to be created or incurred or to
exist, any Lien (or become contractually committed to do so), except the
following:
6.8.1. Liens on the Credit Security that secure the
Credit Obligations.
6.8.2. Liens to secure taxes, assessments and other
governmental charges, to the extent that payment thereof shall not at
the time be required by Section 6.1.
6.8.3. Deposits or pledges made (a) in connection with,
or to secure payment of, workers' compensation, unemployment
insurance, old age pensions or other social security, (b) in
connection with casualty insurance maintained in accordance with
Section 6.3, (c) to secure the performance of bids, tenders, contracts
(other than contracts relating to Financing Debt) or leases, (d) to
secure statutory obligations or surety or appeal bonds, (e) to secure
indemnity, performance or other similar bonds in the ordinary course
of business or (f) in connection with contested amounts to the extent
that payment thereof shall not at that time be required by Section
6.1.
6.8.4. Liens in respect of judgments or awards, to the
extent that such judgments or awards are permitted by Section 6.6.6
but only to the extent that such Liens are junior to the Liens on the
Credit Security granted to secure the Credit Obligations.
6.8.5. Liens of carriers, warehouses, mechanics and
similar Liens, in each case (a) in existence less than 90 days from
the date of creation thereof or (b) being
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contested in good faith by the Company or any Subsidiary in
appropriate proceedings (so long as the Company or such Subsidiary
shall, in accordance with GAAP, have set aside on its books adequate
reserves with respect thereto).
6.8.6. Encumbrances in the nature of (a) zoning
restrictions, (b) easements and reservations of mineral rights, (c)
restrictions of record on the use of real property, (d) landlords' and
lessors' Liens on rented premises, (e) restrictions on transfers or
assignment of leases and (f) minor title irregularities, in all such
cases that do not in the aggregate materially detract from the value
of the Towers taken as a whole and that do not result, or create a
reasonable risk of resulting, in a Material Adverse Change.
6.8.7. Restrictions under federal and state securities
laws on the transfer of securities.
6.8.8. Liens constituting (a) purchase money security
interests (including mortgages, conditional sales, Capitalized Leases
and any other title retention or deferred purchase devices) in real
property, interests in leases or tangible personal property (other
than inventory) existing or created on the date on which such property
is acquired, and (b) the renewal, extension or refunding of any
security interest referred to in the foregoing clause (a) in an amount
not to exceed the amount thereof remaining unpaid immediately prior to
such renewal, extension or refunding; provided, however, that (i) each
such security interest shall attach solely to the particular item of
property so acquired, and the principal amount of Indebtedness
(including Indebtedness in respect of Capitalized Lease Obligations)
secured thereby shall not exceed the cost (including all such
Indebtedness secured thereby, whether or not assumed) of such item of
property; and (ii) the aggregate principal amount of all Indebtedness
secured by Liens permitted by this Section 6.8.8 shall not exceed the
amount permitted by Section 6.6.7.
6.8.9. Liens as in effect on the date hereof described
in Exhibit 7.3 and securing Indebtedness permitted by Section 6.6.13.
6.9. Investments and Acquisitions. Neither the Company nor any
of its Subsidiaries shall have outstanding, acquire or hold any Investment
(including any Investment consisting of the acquisition of any business) (or
become contractually committed to do so), except the following:
6.9.1. Investments of the Company and its Subsidiaries
in (a) Wholly Owned Subsidiaries which are Guarantors as of the date
hereof and (b) Persons that have become Wholly Owned Subsidiaries and
Guarantors after the date hereof in accordance with Section 6.9.6;
provided, however, that no such Investment shall involve the transfer
by the Company of any material assets other than cash.
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6.9.2. Intercompany loans and advances from any Wholly
Owned Subsidiary to the Company or any other Wholly Owned Subsidiary
of the Company, but in each case only to the extent reasonably
necessary for Consolidated tax planning and working capital
management.
6.9.3. Investments in Cash Equivalents.
6.9.4. Guarantees permitted by Section 6.7.
6.9.5. The acquisition on the Initial Closing Date
contemplated by the Prime Acquisition Agreement.
6.9.6. So long as immediately before and after giving
effect thereto no Default exists, Investments of the Company and its
Wholly Owned Subsidiaries consisting of the acquisition of Towers and
at least 80% of the equity of Tower Companies; provided, however, that
(a) at least 15 Banking Days (seven Banking Days in the case of
acquisitions or series of related acquisitions with a cost to the
Company and its Subsidiaries less than $1,000,000) prior to any such
acquisition, the Lenders shall receive computations provided by a
Financial Officer demonstrating pro forma compliance with the
Computation Covenants after giving effect to such acquisition and, in
the case of any acquisition (or series of related acquisitions)
involving consideration exceeding $1,000,000 by the Company and its
Subsidiaries, the due diligence materials required by Section 6.4.4,
(b) the Company shall take all necessary action to cause any such
newly acquired Tower Company to become a Guarantor and to perfect the
Lenders' security interests in the newly acquired Towers and
Designated Real Properties, and (c) in the case of any acquisition (or
series of related acquisitions) involving consideration exceeding
$5,000,000 by the Company and its Subsidiaries, the Required Lenders
shall have provided their prior written consent.
6.10. Distributions. Neither the Company nor any of its
Subsidiaries shall make any Distribution (or become contractually committed to
do so), except the following:
6.10.1. So long as immediately before and after giving
effect thereto no Default exists, Subsidiaries of the Company may make
Distributions to the Company or any Wholly Owned Subsidiary of the
Company and the Company and its Subsidiaries may make Investments
permitted by Sections 6.9.1 and 6.9.2.
6.10.2. So long as immediately before and after giving
effect thereto no Default exists, the Company may pay management fees
to (a) Summit Capital, Inc. in accordance with the Summit Capital,
Inc. Management Agreement listed on Exhibit 7.2.2 and (b) ▇▇▇ ▇▇▇▇▇
in accordance with the ▇▇▇ ▇▇▇▇▇ Consulting Agreement listed on
Exhibit 7.2.2.
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6.10.3. To the extent permitted by the applicable
Subordination Agreement, the Company may (a) make regularly scheduled,
mandatory payments of interest with respect to the ▇▇▇▇▇ Subordinated
Debt, the Prime Subordinated Debt and any other Subordinated Debt, (b)
permanently reduce the ▇▇▇▇▇ Subordinated Debt by selling to ▇▇▇ ▇▇▇▇▇
(or an entity controlled by him) Tower assets as permitted by Section
6.11.6. and (c) pay in full on the Initial Closing Date the BancOne
subordinated notes listed in Exhibit 7.2.2, including any applicable
prepayment penalties.
6.10.4. So long as no Default exists and, after giving
effect to the proposed repurchase, no Default (determined on a pro
forma basis) would exist, the Parent may redeem warrants or common
stock owned by Banc One and put to the Parent in accordance with
section 4.3 of the Banc One Warrant Purchase Agreement listed in
Exhibit 7.2.2.
6.10.5. So long as immediately before and after giving
effect thereto no Default exists, the Company may pay Distributions to
the Parent solely in an amount, and at the times, necessary (a) to pay
the portion of income taxes of the Parent and its Subsidiaries
reasonably allocable to the Company and its Subsidiaries and (b) to
redeem warrants owned by Banc One and put to the Parent in accordance
with section 4.3 of the Banc One Warrant Purchase Agreement listed on
Exhibit 7.2.2.
6.10.6. Distributions by the Company to ATC Holdings to
the extent necessary to consummate the Prime Acquisition on the
Initial Closing Date.
6.11. Asset Dispositions and Mergers. Neither the Company nor any
of its Subsidiaries shall merge or enter into a consolidation or sell, lease,
sell and lease back, sublease or otherwise dispose of any of its assets (or
become contractually committed to do so), except the following:
6.11.1. The Company and any of its Subsidiaries may
sell or otherwise dispose of (a) inventory and Cash Equivalents in the
ordinary course of business, (b) tangible assets to be replaced in the
ordinary course of business within 12 months by other tangible assets
of equal or greater value and (c) tangible assets (other than Towers)
that are no longer used or useful in the business of the Company or
such Subsidiary.
6.11.2. Any Wholly Owned Subsidiary of the Company may
merge or be liquidated into the Company or any other Wholly Owned
Subsidiary of the Company so long as after giving effect to any such
merger to which the Company is a party the Company shall be the
surviving or resulting Person.
6.11.3. Mergers constituting Investments permitted by
Section 6.9.6.
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6.11.4. Licensing of products and intangible assets for
fair value in the ordinary course of business.
6.11.5. So long as immediately before and after giving
effect thereto no Default exists and the Net Asset Sale Proceeds
thereof are applied to repay the Loan as required by Section 4.3.3,
the Company and its Subsidiaries may sell for fair value assets during
any fiscal year contributing not more than 5% of Consolidated Revenues
for the Company's most recently completed fiscal year; provided,
however, that the sum of the foregoing percentages of Consolidated
Revenues for all assets sold pursuant to this Section 6.11.5 since the
date hereof shall not exceed 15%.
6.11.6. So long as immediately before and after giving
effect thereto no Default exists, the Company may sell for fair value
to ▇▇▇ ▇▇▇▇▇ (or an entity controlled by him) Tower assets
constituting not more than 71 Towers acquired in the Prime Acquisition
so long as (a) such Tower assets have not contributed (and would not
be expected to have contributed on a pro forma basis) $225,000 or more
of the annual Consolidated Revenues of the Company and its
Subsidiaries and (b) the ▇▇▇▇▇ Subordinated Debt is permanently
reduced as required by Section 6.10.3.
6.11.7. So long as immediately before and after giving
effect thereto no Default exists, the Company and its Subsidiaries may
enter into sale and leaseback transactions with respect to the real
property underlying Towers (but not with respect to the Towers
themselves) in an aggregate amount not exceeding $200,000.
6.12. Issuance of Stock by Subsidiaries; Subsidiary Distributions.
6.12.1. Issuance of Stock by Subsidiaries. No
Subsidiary shall issue or sell any shares of its capital stock or
other evidence of beneficial ownership to any Person other than (a)
the Company or any Wholly Owned Subsidiary of the Company, which
shares shall have been pledged to the Managing Agent as part of the
Credit Security to the extent required by the Guarantee and Security
Agreement and (b) directors of Subsidiaries as qualifying shares to
the extent required by Legal Requirements.
6.12.2. No Restrictions on Subsidiary Distributions.
Except for this Agreement and the Credit Documents, neither the
Company nor any Subsidiary shall enter into or be bound by any
agreement (including covenants requiring the maintenance of specified
amounts of net worth or working capital) restricting the right of any
Subsidiary to make Distributions or extensions of credit to the
Company (directly or indirectly through another Subsidiary).
6.13. Voluntary Prepayments of Other Indebtedness. Neither the
Company nor any of its Subsidiaries shall make any voluntary prepayment of
principal of or interest on any Financing Debt (other than the Credit
Obligations) or make any voluntary redemptions or
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repurchases of Financing Debt (other than the Credit Obligations); provided,
however, that the Company may make the payments of Subordinated Debt permitted
by Section 6.10.3.
6.14. Derivative Contracts. Neither the Company nor any of its
Subsidiaries shall enter into any Interest Rate Protection Agreement, foreign
currency exchange contract or other financial or commodity derivative contracts
except to provide hedge protection for an underlying economic transaction in
the ordinary course of business.
6.15. Negative Pledge Clauses. Neither the Company nor any of its
Subsidiaries shall enter into any agreement, instrument, deed or lease which
prohibits or limits the ability of the Company or any of its Subsidiaries to
create, incur, assume or suffer to exist any Lien upon any of their respective
properties, assets or revenues, whether now owned or hereafter acquired, or
which requires the grant of any collateral for such obligation if collateral is
granted for another obligation, except the following:
6.15.1. This Agreement and the other Credit Documents.
6.15.2. Covenants in documents creating Liens permitted
by Section 6.8 prohibiting further Liens on the assets encumbered
thereby.
6.16. ERISA, etc. Each of the Company and its Subsidiaries shall
comply, and shall cause all ERISA Group Persons to comply, in all material
respects, with the provisions of ERISA and the Code applicable to each Plan.
Each of the Company and its Subsidiaries shall meet, and shall cause all ERISA
Group Persons to meet, all minimum funding requirements applicable to them with
respect to any Plan pursuant to section 302 of ERISA or section 412 of the
Code, without giving effect to any waivers of such requirements or extensions
of the related amortization periods which may be granted. At no time shall the
Accumulated Benefit Obligations under any Plan that is not a Multiemployer Plan
exceed the fair market value of the assets of such Plan allocable to such
benefits by more than $500,000. The Company and its Subsidiaries shall not
withdraw, and shall cause all other ERISA Group Persons not to withdraw, in
whole or in part, from any Multiemployer Plan so as to give rise to withdrawal
liability exceeding $500,000 in the aggregate. At no time shall the actuarial
present value of unfunded liabilities for post-employment health care benefits,
whether or not provided under a Plan, calculated in a manner consistent with
Statement No. 106 of the Financial Accounting Standards Board, exceed $500,000.
6.17. Transactions with Affiliates. Neither the Company nor any
of its Subsidiaries shall effect any transaction with any of their respective
Affiliates (except for the Company and its Subsidiaries) on a basis less
favorable to the Company and its Subsidiaries than would be the case if such
transaction had been effected with a non-Affiliate.
6.18. Interest Rate Protection. Upon the earlier of (a) the date
the LIBOR Basic Rate for a six-month LIBOR Interest Period first exceeds the
sum of 0.50% plus such LIBOR
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Basic Rate on the Initial Closing Date or (b) the date 180 days after the
Initial Closing Date, the Company shall obtain and thereafter keep in effect
one or more Interest Rate Protection Agreements conforming to International
Securities Dealers Association standards, each in form and substance reasonably
satisfactory to the Managing Agent, so that for a period of at least two years
at least half of all outstanding Financing Debt of the Company and its
Subsidiaries is either at fixed interest rates or covered by Interest Rate
Protection Agreements.
6.19. Environmental Laws.
6.19.1. Compliance with Law and Permits. Each of the
Company and its Subsidiaries shall use and operate all of its
facilities and properties in material compliance with all
Environmental Laws, keep all necessary permits, approvals,
certificates, licenses and other authorizations relating to
environmental matters in effect and remain in material compliance
therewith, and handle all Hazardous Materials in material compliance
with all applicable Environmental Laws.
6.19.2. Notice of Claims, etc. Each of the Company and
its Subsidiaries shall immediately notify the Managing Agent, and
provide copies upon receipt, of all written claims, complaints,
notices or inquiries from governmental authorities relating to the
condition of its facilities and properties or compliance with
Environmental Laws, and shall promptly cure and have dismissed with
prejudice to the satisfaction of the Managing Agent any actions and
proceedings relating to compliance with Environmental Laws.
7. Representations and Warranties. In order to induce the Lenders to
extend credit to the Company hereunder, each of the Company and the Guarantors
jointly and severally represents and warrants as follows:
7.1. Organization and Business.
7.1.1. The Company. The Company is a duly organized
and validly existing corporation, in good standing under the laws of
Delaware, with all power and authority, corporate or otherwise,
necessary to (a) enter into and perform this Agreement and each other
Credit Document to which it is party, (b) guarantee the Credit
Obligations, (c) grant the Lenders the security interests in the
Credit Security owned by it to secure the Credit Obligations and (d)
own its properties and carry on the business now conducted or proposed
to be conducted by it. Certified copies of the Charter and By-laws of
the Company have been previously delivered to the Managing Agent and
are correct and complete. Exhibit 7.1, as from time to time hereafter
supplemented in accordance with Sections 6.4.1 and 6.4.2, sets forth,
as of the later of the date hereof or the end of the most recent
fiscal quarter for which financial statements are required to be
furnished in accordance with such Sections, (i) the jurisdiction of
incorporation of the Company, (ii) the address of the Company's
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principal executive office and chief place of business, (iii) each
name, including any trade name, under which the Company conducts its
business and (iv) the jurisdictions in which the Company keeps
tangible personal property.
7.1.2. Subsidiaries. Each Subsidiary of the Company is
duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it is organized, with all power and
authority, corporate or otherwise, necessary to (a) enter into and
perform this Agreement and each other Credit Document to which it is
party, (b) guarantee the Credit Obligations (in the case of the
Company, incur the Credit Obligations), (c) grant the Lenders the
security interest in the Credit Security owned by such Subsidiary to
secure the Credit Obligations and (d) own its properties and carry on
the business now conducted or proposed to be conducted by it.
Certified copies of the Charter and By-laws of each Subsidiary of the
Company have been previously delivered to the Managing Agent and are
correct and complete. Exhibit 7.1, as from time to time hereafter
supplemented in accordance with Sections 6.4.1 and 6.4.2, sets forth,
as of the later of the date hereof or the end of the most recent
fiscal quarter for which financial statements are required to be
furnished in accordance with such Sections, (i) the name and
jurisdiction of organization of each Subsidiary of the Company, (ii)
the address of the chief executive office and principal place of
business of each such Subsidiary, (iii) each name under which each
such Subsidiary conducts its business, (iv) each jurisdiction in which
each such Subsidiary keeps tangible personal property, and (v) the
number of authorized and issued shares and ownership of each such
Subsidiary.
7.1.3. Qualification. Each of the Company and its
Subsidiaries is duly and legally qualified to do business as a foreign
corporation or other entity and is in good standing in each state or
jurisdiction in which such qualification is required and is duly
authorized, qualified and licensed under all laws, regulations,
ordinances or orders of public authorities, or otherwise, to carry on
its business in the places and in the manner in which it is conducted,
except for failures to be so qualified, authorized or licensed which
would not in the aggregate result, or create a reasonable risk of
resulting, in any Material Adverse Change.
7.1.4. Capitalization. No options, warrants,
conversion rights, preemptive rights or other statutory or contractual
rights to purchase shares of capital stock or other securities of any
Subsidiary now exist, nor has any Subsidiary authorized any such
right, nor is any Subsidiary obligated in any other manner to issue
shares of its capital stock or other securities.
7.2. Financial Statements and Other Information; Material
Agreements.
7.2.1. Financial Statements and Other Information. The
Company has previously furnished to the Lenders copies of the
following:
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(a) The audited Consolidated and unaudited
Consolidating balance sheets of the Company and its Subsidiaries as at
December 31 in each of 1995 and 1994 and the audited Consolidated and
unaudited Consolidating statements of income and the audited
Consolidated statements of changes in shareholders' equity and of cash
flows of the Company and its Subsidiaries for the fiscal years of the
Company then ended.
(b) The unaudited Consolidated and Consolidating
balance sheets of the Company and its Subsidiaries as at June 30, 1996
and the unaudited Consolidated statements of income, of changes in
shareholders' equity and of cash flows of the Company and its
Subsidiaries for the portion of the fiscal year then ended.
(c) The seven-year financial and operational
projections for the Company and its Subsidiaries dated October 10,
1996.
(d) American Tower Corporation Offering Memorandum
dated August 1996.
The audited Consolidated financial statements (including the
notes thereto) referred to in clause (a) above were prepared in
accordance with GAAP and fairly present in all material respects the
financial position of the Company and its Subsidiaries on a
Consolidated basis at the respective dates thereof and the results of
their operations for the periods covered thereby. The unaudited
Consolidating financial statements referred to in clause (a) above and
the unaudited Consolidated and Consolidating financial statements
referred to in clause (b) above were prepared in accordance with GAAP
and fairly present in all material respects the financial position of
the Company and its Subsidiaries at the respective dates thereof and
the results of their operations for the periods covered thereby,
subject to normal year-end audit adjustment and the addition of
footnotes in the case of interim financial statements. Neither the
Company nor any of its Subsidiaries has any known contingent liability
material to the Company and its Subsidiaries on a Consolidated basis
which is not reflected in the balance sheets referred to in clauses
(a) or (b) above (or delivered pursuant to Sections 6.4.1 or 6.4.2) or
in the notes thereto.
In the Company's judgment, the financial and operational
projections referred to in clause (c) above constitute a reasonable
basis as of the Initial Closing Date for the assessment of the future
performance of the Company and its Subsidiaries during the periods
indicated therein, it being understood that any projected financial
information represents an estimate, based on various assumptions, of
future results of operations which may or may not in fact occur.
The offering memorandum described in clause (d) above does
not contain any untrue statement of a material fact or omit to state a
material fact necessary in order to
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make the statements contained therein not misleading in light of the
circumstances under which they were made.
7.2.2. Material Agreements. The Company has previously
furnished to the Lenders correct and complete copies, including all
exhibits, schedules and amendments thereto, of the agreements, each as
in effect on the date hereof, listed in Exhibit 7.2.2 (the "Material
Agreements").
7.3. Agreements Relating to Financing Debt, Investments, etc.
Exhibit 7.3, as from time to time hereafter supplemented in accordance with
Sections 6.4.1 and 6.4.2, sets forth (a) the amounts (as of the dates indicated
in Exhibit 7.3, as so supplemented) of all Financing Debt of the Company and
its Subsidiaries and all agreements which relate to such Financing Debt, (b)
all Liens and Guarantees with respect to such Financing Debt, (c) all
agreements which directly or indirectly require the Company or any Subsidiary
to make any Investment, and (d) all trademarks, tradenames, service marks,
service names and patents registered with the federal Patent and Trademark
Office (or with respect to which applications for such registration have been
filed). The Company has furnished the Lenders with correct and complete copies
of any agreements described in clauses (a) through (d) above requested by the
Required Lenders.
7.4. Changes in Condition. Since December 31, 1995 no Material
Adverse Change has occurred and between December 31, 1995 and the date hereof,
neither the Company nor any Subsidiary of the Company has entered into any
material transaction outside the ordinary course of business except for the
transactions contemplated by this Agreement and the Material Agreements.
7.5. Title to Assets. The Company and its Subsidiaries have good
and marketable title to all assets necessary for or used in the operations of
their business as now conducted by them and reflected in the most recent
balance sheet referred to in Section 7.2.1 (or the balance sheet most recently
furnished to the Lenders pursuant to Sections 6.4.1 or 6.4.2), and to all
assets acquired subsequent to the date of such balance sheet, subject to no
Liens except for Liens permitted by Section 6.8 and except for assets disposed
of as permitted by Section 6.11.
7.6. Operations in Conformity With Law, etc. The operations of
the Company and its Subsidiaries as now conducted or proposed to be conducted
are not in violation of, nor is the Company or its Subsidiaries in default
under, any Legal Requirement presently in effect, except for such violations
and defaults as do not and will not, in the aggregate, result, or create a
reasonable risk of resulting, in any Material Adverse Change. The Company has
received no notice of any such violation or default and has no knowledge of any
basis on which the operations of the Company or its Subsidiaries, as now
conducted and as currently proposed to be conducted after the date hereof,
would be held so as to violate or to give rise to any such violation or
default.
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7.7. Litigation. No litigation, at law or in equity, or any
proceeding before any court, board or other governmental or administrative
agency or any arbitrator is pending or, to the knowledge of the Company or any
Guarantor, threatened which involves any reasonable risk of any final judgment,
order or liability which, after giving effect to any applicable insurance, has
resulted, or creates a reasonable risk of resulting, in any Material Adverse
Change or which seeks to enjoin the consummation, or which questions the
validity, of any of the transactions contemplated by this Agreement or any
other Credit Document. No judgment, decree or order of any court, board or
other governmental or administrative agency or any arbitrator has been issued
against or binds the Company or any of its Subsidiaries which has resulted, or
creates a reasonable risk of resulting, in any Material Adverse Change.
7.8. Authorization and Enforceability. Each of the Company and
each other Obligor has taken all corporate action required to execute, deliver
and perform this Agreement and each other Credit Document to which it is party.
No consent of stockholders of the Company is necessary in order to authorize
the execution, delivery or performance of this Agreement or any other Credit
Document to which the Company is party. Each of this Agreement and each other
Credit Document constitutes the legal, valid and binding obligation of each
Obligor party thereto and is enforceable against such Obligor in accordance
with its terms.
7.9. No Legal Obstacle to Agreements. Neither the execution and
delivery of this Agreement or any other Credit Document, nor the making of any
borrowings hereunder, nor the guaranteeing of the Credit Obligations, nor the
securing of the Credit Obligations with the Credit Security, nor the
consummation of any transaction (other than the Prime Acquisition) referred to
in or contemplated by this Agreement or any other Credit Document, nor the
fulfillment of the terms hereof or thereof (other than the consummation of the
Prime Acquisition) or of any other agreement, instrument, deed or lease
contemplated by this Agreement or any other Credit Document (other than the
Prime Acquisition Agreement), has constituted or resulted in or will constitute
or result in:
(a) any breach or termination of the provisions of any
agreement, instrument, deed or lease to which the Company, any of its
Subsidiaries or any other Obligor is a party or by which it is bound,
or of the Charter or By-laws of the Company, any of its Subsidiaries
or any other Obligor;
(b) the violation of any law, statute, judgment, decree
or governmental order, rule or regulation applicable to the Company,
any of its Subsidiaries or any other Obligor;
(c) the creation under any agreement, instrument, deed
or lease of any Lien (other than Liens on the Credit Security which
secure the Credit Obligations) upon any of the assets of the Company,
any of its Subsidiaries or any other Obligor; or
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(d) any redemption, retirement or other repurchase
obligation of the Company, any of its Subsidiaries or any other
Obligor under any Charter, By-law, agreement, instrument, deed or
lease.
No approval, authorization or other action by, or declaration to or filing
with, any governmental or administrative authority or any other Person is
required to be obtained or made by the Company, any of its Subsidiaries or any
other Obligor in connection with the execution, delivery and performance of
this Agreement, the Notes or any other Credit Document, the transactions
contemplated hereby or thereby, the making of any borrowing hereunder, the
guaranteeing of the Credit Obligations or the securing of the Credit
Obligations with the Credit Security (other than filings necessary to perfect
the Managing Agent's security interest in the Credit Security).
7.10. Defaults. Neither the Company nor any of its Subsidiaries
is in default under any provision of its Charter or By-laws or of this
Agreement or any other Credit Document. Neither the Company nor any of its
Subsidiaries is in default under any provision of any agreement, instrument,
deed or lease to which it is party or by which it or its property is bound so
as to result, or create a reasonable risk of resulting, in any Material Adverse
Change. Neither the Company nor any of its Subsidiaries has violated any law,
judgment, decree or governmental order, rule or regulation, in each case so as
to result, or create a reasonable risk of resulting, in any Material Adverse
Change.
7.11. Licenses, etc. The Company and its Subsidiaries have all
FCC licenses, patents, patent applications, patent licenses, patent rights,
trademarks, trademark rights, trade names, trade name rights, copyrights,
licenses, franchises, permits, authorizations and other rights as are necessary
for the conduct of the business of the Company and its Subsidiaries as now
conducted by them. All of the foregoing are in full force and effect in all
material respects, and each of the Company and its Subsidiaries is in
substantial compliance with the foregoing without any known conflict with the
valid rights of others which has resulted, or creates a reasonable risk of
resulting, in any Material Adverse Change. No event has occurred which
permits, or after notice or lapse of time or both would permit, the revocation
or termination of any such license, franchise or other right or which affects
the rights of any of the Company and its Subsidiaries thereunder so as to
result, or to create a reasonable risk of resulting, in any Material Adverse
Change. No litigation or other proceeding or dispute exists with respect to
the validity or, where applicable, the extension or renewal, of any of the
foregoing which has resulted, or creates a reasonable risk of resulting, in any
Material Adverse Change.
7.12. Tax Returns. Each of the Company and its Subsidiaries has
filed all material tax and information returns which are required to be filed
by it and has paid, or made adequate provision for the payment of, all taxes
which have or may become due pursuant to such returns or to any assessment
received by it, other than taxes and assessments being contested by the Company
and its Subsidiaries in good faith by appropriate proceedings and for which
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adequate reserves have been taken in accordance with GAAP. Neither the Company
nor any of its Subsidiaries knows of any material additional assessments or any
basis therefor. The Company reasonably believes that the charges, accruals and
reserves on the books of the Company and its Subsidiaries in respect of taxes
or other governmental charges are adequate.
7.13. Certain Business Representations.
7.13.1. Labor Relations. No dispute or controversy
between the Company or any of its Subsidiaries and any of their
respective employees has resulted, or is reasonably likely to result,
in any Material Adverse Change, and neither the Company nor any of its
Subsidiaries anticipates that its relationships with its unions or
employees will result, or are reasonably likely to result, in any
Material Adverse Change. The Company and each of its Subsidiaries is
in compliance in all material respects with all federal and state laws
with respect to (a) non-discrimination in employment with which the
failure to comply, in the aggregate, has resulted, or creates a
reasonable risk of resulting, in a Material Adverse Change and (b) the
payment of wages.
7.13.2. Antitrust. Each of the Company and its
Subsidiaries is in compliance in all material respects with all
federal and state antitrust laws relating to its business and the
geographic concentration of its business.
7.13.3. Tower Sites. Each of the Towers is constructed
so as to be capable of being moved from its present location and
except to the extent recordation of any renewal, extension, amendment,
assignment or other instrument in connection with any lease of real
property in the State of Louisiana in the applicable public records
may be required in order to permit removal of a Tower, the Company and
its Subsidiaries have the right to remove the Towers from their
present locations. None of the Towers located on Designated Real
Property shall be removed from their locations without the prior
written consent of the Required Lenders, which consent shall not be
unreasonably withheld or delayed, unless (a) such removal is in the
ordinary course of business, (b) such actions and making such filings
of record as may be necessary to continue the first priority perfected
Lien of the Lenders therein have been taken and (c) the Managing Agent
has received Estoppel and Consent Letters relating to the new
locations.
7.13.4. Real Property Leases. The present and
contemplated use of the Real Property is in compliance in all material
respects with all applicable zoning ordinances and regulations and
other laws and regulations where failure so to comply would result, or
create reasonable risk of resulting, in a Material Adverse Change.
Each Lease is in full force and effect, the Company or one of its
Subsidiaries has all rights of lessee thereunder, there has been no
default in the performance of any of its terms or conditions by any
party thereto, and no claims of default have been asserted with
respect thereto where such default would result, or create a
reasonable risk of resulting, in a Material Adverse Change.
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7.13.5. Operation and Maintenance of Equipment. To the
best of the Company's knowledge, no Person owning or operating any
equipment necessary for the operation of the business of the Company
and its Subsidiaries has used, operated or maintained the same in a
manner which now or hereafter could result in the cancellation or
termination of the right of the Company and its Subsidiaries to use
the same or which could result in any material liability of the
Company and its Subsidiaries for damages in connection therewith. All
of the equipment and other tangible personal property which will be
owned by the Company and its Subsidiaries and used in connection with
the business of the Company and its Subsidiaries upon the Initial
Closing Date is in good operating condition and repair, reasonable
wear and tear in the ordinary course of business excepted, and has
been used, operated and maintained in substantial compliance with all
applicable laws, rules and regulations. To the Company's knowledge,
all of the Towers owned by the Company and its Subsidiaries are in
good operating condition and repair and have been used, operated and
maintained in compliance in all material respects with all applicable
laws, rules and regulations.
7.13.6. FCC and FAA Matters. No FCC licenses or
permits are necessary to the conduct of the business of the Company
and its Subsidiaries as presently conducted and proposed to be
conducted, and the Company and its Subsidiaries are not subject to FCC
regulation. The Company (a) has duly and timely filed all material
reports and other material filings, if any, which are required to be
filed by it or any of its Subsidiaries under the Communications Act or
any other applicable law, rule or regulation of any governmental
authority, including the FAA, the nonfiling of which would not result,
or be materially likely to result, in a Material Change, and (b) is in
compliance with all such laws, rules, regulations and ordinances,
including those promulgated by the FAA, to the extent the
noncompliance with which would not result, or not be materially likely
to result, in a Material Adverse Change. All information provided by
or on behalf of the Company or any Affiliate in any material filing,
if any, with the FCC relating to the business of the Company and its
Subsidiaries was, to the knowledge of such Person at the time of
filing, true, complete and correct in all material respects when made,
and the FCC has been notified of any substantial or significant
changes in such information as may be required in accordance with
applicable laws, rules and regulations.
7.14. Environmental Regulations.
7.14.1. Environmental Compliance. Each of the Company
and its Subsidiaries is in compliance in all material respects with
the Clean Air Act, the Federal Water Pollution Control Act, the Marine
Protection Research and Sanctuaries Act, RCRA, CERCLA and any other
Environmental Law in effect in any jurisdiction in which any
properties of the Company or any of its Subsidiaries are located or
where
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any of them conducts its business, and with all applicable published
rules and regulations (and applicable standards and requirements) of
the federal Environmental Protection Agency and of any similar
agencies in states or foreign countries in which the Company or its
Subsidiaries conducts its business other than those which in the
aggregate have not resulted, and do not create a reasonable risk of
resulting, in a Material Adverse Change.
7.14.2. Environmental Litigation. No suit, claim,
action or proceeding of which the Company or any of its Subsidiaries
has been given notice or otherwise has knowledge is now pending before
any court, governmental agency or board or other forum, or to the
Company's or any of its Subsidiaries knowledge, threatened by any
Person (nor to the Company's or any of its Subsidiaries' knowledge,
does any factual basis exist therefor) for, and neither the Company
nor any of its Subsidiaries have received written correspondence from
any federal, state or local governmental authority with respect to:
(a) noncompliance by the Company or any of its
Subsidiaries with any Environmental Law;
(b) personal injury, wrongful death or other tortious
conduct relating to materials, commodities or products used,
generated, sold, transferred or manufactured by the Company or any of
its Subsidiaries (including products made of, containing or
incorporating asbestos, lead or other hazardous materials, commodities
or toxic substances); or
(c) the release into the environment by the Company or
any of its Subsidiaries of any Hazardous Material generated by the
Company or any of its Subsidiaries whether or not occurring at or on a
site owned, leased or operated by the Company or any of its
Subsidiaries.
7.14.3. Hazardous Material. Any waste disposal or dump
sites at which Hazardous Material generated by either the Company or
any of its Subsidiaries has been disposed of directly by the Company
or any of its Subsidiaries and all independent contractors to whom the
Company or any of its Subsidiaries have delivered Hazardous Material,
or to the Company's or any of its Subsidiaries' knowledge, where
Hazardous Material finally came to be located, has not resulted, and
does not create a reasonable risk of resulting, in a Material Adverse
Change.
7.14.4. Environmental Condition of Properties. None of
the properties owned or leased by the Company or any of its
Subsidiaries has been used as a treatment, storage or disposal site,
other than as disclosed in Exhibit 7.14. No Hazardous Material is
present in any real property currently or formerly owned or
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operated by the Company or any of its Subsidiaries except that which
has not resulted, and does not create a reasonable risk of resulting,
in a Material Adverse Change.
7.15. Pension Plans. Each Plan (other than a Multiemployer Plan)
and, to the knowledge of the Company and its Subsidiaries, each Multiemployer
Plan is in material compliance with the applicable provisions of ERISA and the
Code. Each Multiemployer Plan and each Plan that constitutes a "defined
benefit plan" (as defined in ERISA) are set forth in Exhibit 7.15. Each ERISA
Group Person has met all of the funding standards applicable to all Plans that
are not Multiemployer Plans, and no condition exists which would permit the
institution of proceedings to terminate any Plan that is not a Multiemployer
Plan under section 4042 of ERISA. To the best knowledge of the Company and
each Subsidiary, no Plan that is a Multiemployer Plan is currently insolvent or
in reorganization or has been terminated within the meaning of ERISA.
7.16. Prime Acquisition Agreement, etc. The Prime Acquisition
Agreement is a valid and binding contract as to ATC Holdings and, to the best
of the Company's knowledge, as to the Prime Holders. ATC Holdings is not in
default in any material respect of its obligations under the Prime Acquisition
Agreement and, to the best of the Company's knowledge, the Prime Holders are
not in default in any material respect of any of their obligations thereunder.
The representations and warranties of the ATC Holdings set forth in the Prime
Acquisition Agreement are true and correct in all material respect as of the
date hereof with the same force and effect as though made on and as of the date
hereof. To the Company's knowledge all of the representations and warranties
of the Prime Holders set forth in the Prime Acquisition Agreement are true and
correct in all material respects as of the date hereof with the same force and
effect as though made on and as of the date hereof.
7.17. Foreign Trade Regulations; Government Regulation; Margin
Stock.
7.17.1. Foreign Trade Regulations. Neither the
execution and delivery of this Agreement or any other Credit Document,
nor the making by the Company of any borrowings hereunder, nor the
guaranteeing of the Credit Obligations by any Guarantor, nor the
securing of the Credit Obligations with the Credit Security, has
constituted or resulted in or will constitute or result in the
violation of any Foreign Trade Regulation.
7.17.2. Government Regulation. Neither the Company nor
any of its Subsidiaries, nor any Person controlling the Company or any
of its Subsidiaries or under common control with the Company or any of
its Subsidiaries, is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Investment
Company Act, the Interstate Commerce Act or any statute or regulation
which regulates the incurring by the Company or any of its
Subsidiaries of Financing Debt as contemplated by this Agreement and
the other Credit Documents.
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7.17.3. Margin Stock. Neither the Company nor any of
its Subsidiaries owns any Margin Stock.
7.18. Disclosure. Neither this Agreement nor any other Credit
Document to be furnished to the Lenders by or on behalf of the Company or any
of its Subsidiaries in connection with the transactions contemplated hereby or
by such Credit Document contains any untrue statement of material fact or omits
to state a material fact necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances under which they
were made. No fact is actually known to the Company or any of its Subsidiaries
which has resulted, or in the future (so far as the Company or any of its
Subsidiaries can reasonably foresee) will result, or creates a reasonable risk
of resulting, in any Material Adverse Change, except to the extent that present
or future general economic conditions may result in a Material Adverse Change.
8. Defaults.
8.1. Events of Default. The following events are referred to as
"Events of Default":
8.1.1. Payment. The Company shall fail to make any
payment in respect of: (a) interest or any fee on or in respect of
any of the Credit Obligations owed by it as the same shall become due
and payable, and such failure shall continue for a period of three
days, or (b) any Credit Obligation with respect to payments made by
any Letter of Credit Issuer under any Letter of Credit or any draft
drawn thereunder within three days after demand therefor by such
Letter of Credit Issuer or (c) principal of any of the Credit
Obligations owed by it as the same shall become due, whether at
maturity or by acceleration or otherwise.
8.1.2. Specified Covenants. The Company or any of its
Subsidiaries shall fail to perform or observe any of the provisions of
Section 6.4.6 or Sections 6.5 through 6.19.
8.1.3. Other Covenants. The Company, any of its
Subsidiaries or any other Obligor shall fail to perform or observe any
other covenant, agreement or provision to be performed or observed by
it under this Agreement or any other Credit Document, and such failure
shall not be rectified or cured to the written satisfaction of the
Required Lenders within 30 days after the earlier of (a) notice
thereof by the Managing Agent to the Company or (b) a Financial
Officer shall have actual knowledge thereof.
8.1.4. Representations and Warranties. Any
representation or warranty of or with respect to the Company, any of
its Subsidiaries or any other Obligor made to the Lenders or the
Managing Agent in, pursuant to or in connection with this Agreement or
any other Credit Document, including any financial statements,
reports,
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notices, mortgages, assignments, UCC financing statements or
certificates delivered to the Agent or any of the Lenders by the
Company, any of its Subsidiaries or any other Obligor in connection
herewith or therewith, shall be materially false on the date as of
which it was made.
8.1.5. Cross Default, etc.
(a) The Company or any of its Subsidiaries shall fail
to make any payment when due (after giving effect to any applicable
grace periods) in respect of any Financing Debt (other than the Credit
Obligations) outstanding in an aggregate amount of principal (whether
or not due) and accrued interest exceeding $1,000,000;
(b) the Company or any of its Subsidiaries shall fail
to perform or observe the terms of any agreement or instrument
relating to such Financing Debt, and such failure shall continue,
without having been duly cured, waived or consented to, beyond the
period of grace, if any, specified in such agreement or instrument,
and such failure shall permit the acceleration of such Financing Debt;
(c) all or any part of such Financing Debt of the
Company or any of its Subsidiaries shall be accelerated or shall
become due or payable prior to its stated maturity (except with
respect to voluntary prepayments thereof) for any reason whatsoever;
(d) any Lien on any property of the Company or any of
its Subsidiaries securing any such Financing Debt shall be enforced by
foreclosure or similar action; or
(e) any holder of any such Financing Debt shall
exercise any right of rescission with respect to the issuance thereof
or put or repurchase rights against any Obligor with respect to such
Financing Debt (other than any such rights that may be satisfied with
"payment in kind" notes or other similar securities).
8.1.6. Ownership; Liquidation; etc. Except as
permitted by Section 6.11:
(a) the Company shall cease to own, directly or
indirectly, all the capital stock of its Subsidiaries, except to the
extent permitted by Section 6.12.1; or
(b) the Parent shall cease to own at least 80% of all
the outstanding capital stock and of the outstanding capital stock
entitled to vote generally in ATC Holdings and ATC Holdings shall
cease to own all the capital stock of the Company; or
(c) any Person, together with "affiliates" and
"associates" of such Person within the meaning of Rule 12b-2 of the
Exchange Act, or any "group" including such Person under sections
13(d) and 14(d) of the Exchange Act, other than Summit Capital,
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Inc., shall acquire after the date hereof beneficial ownership within
the meaning of Rule 13d-3 of the Exchange Act of 50% or more of either
the voting stock or total equity capital of the Parent; or
(d) the Parent, ATC Holdings, the Company, any of the
Company's Subsidiaries or any other Obligor shall initiate any action
to dissolve, liquidate or otherwise terminate its existence.
8.1.7. Enforceability, etc. Any Credit Document shall
cease for any reason (other than the scheduled termination thereof in
accordance with its terms) to be enforceable in accordance with its
terms or in full force and effect; or any party to any Credit Document
shall so assert in a judicial or similar proceeding; or the security
interests created by this Agreement or any other Credit Documents
shall cease to be enforceable and of the same effect and priority
purported to be created hereby.
8.1.8. Judgments. A final judgment (a) which, with
other outstanding final judgments against the Company and its
Subsidiaries, exceeds an aggregate of $750,000 in excess of applicable
insurance coverage shall be rendered against the Company or any of its
Subsidiaries, or (b) which grants injunctive relief that results, or
creates a reasonable risk of resulting, in a Material Adverse Change
and in either case if, (i) within 30 days after entry thereof, such
judgment shall not have been discharged or execution thereof stayed
pending appeal or (ii) within 30 days after the expiration of any such
stay, such judgment shall not have been discharged.
8.1.9. ERISA. Any "reportable event" (as defined in
section 4043 of ERISA) shall have occurred that reasonably could be
expected to result in termination of a Plan or the appointment by the
appropriate United States District Court of a trustee to administer
any Plan or the imposition of a Lien in favor of a Plan; or any ERISA
Group Person shall fail to pay when due amounts aggregating in excess
of $500,000 which it shall have become liable to pay to the PBGC or to
a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan shall be filed under Title IV of ERISA by any ERISA Group Person
or administrator; or the PBGC shall institute proceedings under Title
IV of ERISA to terminate or to cause a trustee to be appointed to
administer any Plan or a proceeding shall be instituted by a fiduciary
of any Plan against any ERISA Group Person to enforce section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed
within 30 days thereafter; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that
any Plan must be terminated.
8.1.10. Bankruptcy, etc. The Company, any of its
Subsidiaries or any other Obligor shall:
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(a) commence a voluntary case under the Bankruptcy Code
or authorize, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(b) (i) have filed against it a petition commencing an
involuntary case under the Bankruptcy Code that shall not have been
dismissed within 60 days after the date on which such petition is
filed, or (ii) file an answer or other pleading within such 60-day
period admitting or failing to deny the material allegations of such a
petition or seeking, consenting to or acquiescing in the relief
therein provided, or (iii) have entered against it an order for relief
in any involuntary case commenced under the Bankruptcy Code;
(c) seek relief as a debtor under any applicable law,
other than the Bankruptcy Code, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in
such relief;
(d) have entered against it an order by a court of
competent jurisdiction (i) finding it to be bankrupt or insolvent,
(ii) ordering or approving its liquidation or reorganization as a
debtor or any modification or alteration of the rights of its
creditors or (iii) assuming custody of, or appointing a receiver or
other custodian for, all or a substantial portion of its property; or
(e) make an assignment for the benefit of, or enter
into a composition with, its creditors, or appoint, or consent to the
appointment of, or suffer to exist a receiver or other custodian for,
all or a substantial portion of its property.
8.2. Certain Actions Following an Event of Default. If any one
or more Events of Default shall occur, then in each and every such case:
8.2.1. Terminate Obligation to Extend Credit. The
Managing Agent on behalf of the Lenders may (and upon written request
of the Required Lenders the Managing Agent shall) terminate the
obligations of the Lenders to make any further extensions of credit
under the Credit Documents by furnishing notice of such termination to
the Company.
8.2.2. Specific Performance; Exercise of Rights. The
Managing Agent on behalf of the Lenders may (and upon written request
of the Required Lenders the Managing Agent shall) proceed to protect
and enforce the Lenders' rights by suit in equity, action at law
and/or other appropriate proceeding, either for specific performance
of any covenant or condition contained in this Agreement or any other
Credit Document or in any instrument or assignment delivered to the
Lenders pursuant to this Agreement or any other Credit Document, or in
aid of the exercise of any power
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granted in this Agreement or any other Credit Document or any such
instrument or assignment.
8.2.3. Acceleration. The Managing Agent on behalf of
the Lenders may (and upon written request of the Required Lenders the
Managing Agent shall) by notice in writing to the Company (a) declare
all or any part of the unpaid balance of the Credit Obligations then
outstanding to be immediately due and payable, and (b) require the
Company immediately to deposit with the Managing Agent in cash an
amount equal to the then Letter of Credit Exposure (which cash shall
be held and applied as provided in Section 4.5), and thereupon such
unpaid balance or part thereof and such amount equal to the Letter of
Credit Exposure shall become so due and payable without presentation,
protest or further demand or notice of any kind, all of which are
hereby expressly waived; provided, however, that if a Bankruptcy
Default shall have occurred, the unpaid balance of the Credit
Obligations shall automatically become immediately due and payable.
8.2.4. Enforcement of Payment; Credit Security; Setoff.
The Managing Agent on behalf of the Lenders may (and upon written
request of the Required Lenders the Managing Agent shall) proceed to
enforce payment of the Credit Obligations in such manner as it may
elect, to cancel, or instruct other Letter of Credit Issuers to
cancel, any outstanding Letters of Credit which permit the
cancellation thereof and, in cooperation with the Collateral Agent, to
realize upon any and all rights in the Credit Security. The Lenders
may offset and apply toward the payment of the Credit Obligations
(and/or toward the curing of any Event of Default) any Indebtedness
from the Lenders to the respective Obligors, including any
Indebtedness represented by deposits in any account maintained with
the Lenders, regardless of the adequacy of any security for the Credit
Obligations. The Lenders shall have no duty to determine the adequacy
of any such security in connection with any such offset.
8.2.5. Cumulative Remedies. To the extent not
prohibited by applicable law which cannot be waived, all of the
Lenders' rights hereunder and under each other Credit Document shall
be cumulative.
8.3. Annulment of Defaults. Once an Event of Default has
occurred, such Event of Default shall be deemed to exist and be continuing for
all purposes of the Credit Documents until the Required Lenders or the Managing
Agent (with the consent of the Required Lenders) shall have waived such Event
of Default in writing, stated in writing that the same has been cured to such
Lenders' reasonable satisfaction or entered into an amendment to this Agreement
which by its express terms cures such Event of Default, at which time such
Event of Default shall no longer be deemed to exist or to have continued. No
such action by the Lenders or the Managing Agent shall extend to or affect any
subsequent Event of Default or impair any rights of the Lenders upon the
occurrence thereof. The making of any extension of credit during the existence
of any Default or Event of Default shall not constitute a waiver thereof.
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8.4. Waivers. To the extent that such waiver is not prohibited
by the provisions of applicable law that cannot be waived, each of the Company
and the other Obligors waives:
(a) all presentments, demands for performance, notices
of nonperformance (except to the extent required by this Agreement or
any other Credit Document), protests, notices of protest and notices
of dishonor;
(b) any requirement of diligence or promptness on the
part of any Lender in the enforcement of its rights under this
Agreement, the Notes or any other Credit Document;
(c) any and all notices of every kind and description
which may be required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in
full) which it may now or hereafter have with respect to its liability
under this Agreement, the Notes or any other Credit Document or with
respect to the Credit Obligations.
9. Expenses; Indemnity.
9.1. Expenses. Whether or not the transactions contemplated
hereby shall be consummated, the Company will pay:
(a) all reasonable expenses of the Agents (including
the out-of-pocket expenses related to forming the group of Lenders and
reasonable fees and disbursements of the counsel to the Agents) in
connection with the preparation and duplication of this Agreement and
each other Credit Document, examinations by, and reports of, any
Agent's commercial financial examiners, fixed asset appraisers and
environmental consultants, the transactions contemplated hereby and
thereby and amendments, waivers, consents and other operations
hereunder and thereunder;
(b) all recording and filing fees and transfer and
documentary stamp and similar taxes at any time payable in respect of
this Agreement, any other Credit Document, any Credit Security or the
incurrence of the Credit Obligations; and
(c) all other reasonable expenses incurred by the
Lenders or the holder of any Credit Obligation in connection with the
enforcement of any rights hereunder or under any other Credit
Document, including costs of collection and reasonable attorneys' fees
(including a reasonable allowance for the hourly cost of attorneys
employed by the Lenders on a salaried basis) and expenses.
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9.2. General Indemnity. The Company shall indemnify the Lenders
and the Managing Agent and hold them harmless from any liability, loss or
damage resulting from the violation by the Company of Section 2.4. In
addition, the Company shall indemnify each Lender, each Agent, each of the
Lenders' or any Agent's directors, officers, employees, agents, attorneys,
accountants, consultants and each Person, if any, who controls any Lender or
any Agent (each Lender, each Agent and each of such directors, officers,
employees, agents, attorneys, accountants, consultants and control Persons is
referred to as an "Indemnified Party") and hold each of them harmless from and
against any and all claims, damages, liabilities and reasonable expenses
(including reasonable fees and disbursements of counsel with whom any
Indemnified Party may consult in connection therewith and all reasonable
expenses of litigation or preparation therefor) which any Indemnified Party may
incur or which may be asserted against any Indemnified Party in connection with
(a) the Indemnified Party's compliance with or contest of any subpoena or other
process issued against it in any proceeding involving the Company or any of its
Subsidiaries or their Affiliates, (b) any litigation or investigation involving
the Company, any of its Subsidiaries or their Affiliates, or any officer,
director or employee thereof, (c) the existence or exercise of any security
rights with respect to the Credit Security in accordance with the Credit
Documents, or (d) this Agreement, any other Credit Document or any transaction
contemplated hereby or thereby; provided, however, that the foregoing indemnity
shall not apply to (i) litigation commenced by the Company against the Lenders
or any Agent which seeks enforcement of any of the rights of the Company
hereunder or under any other Credit Document and is determined adversely to the
Lenders or such Agent in a final nonappealable judgment or to the extent such
claims, damages, liabilities and expenses result from a Lender's or such
Agent's gross negligence or willful misconduct and (ii) indirect or
consequential damages incurred by any Indemnified Party.
9.3. Indemnity With Respect to Letters of Credit. The Company
shall indemnify each Letter of Credit Issuer and its correspondents and hold
each of them harmless from and against any and all claims, losses, liabilities,
damages and reasonable expenses (including reasonable attorneys' fees) arising
from or in connection with any Letter of Credit, including any such claim,
loss, liability, damage or expense arising out of any transfer, sale, delivery,
surrender or endorsement of any invoice, ▇▇▇▇ of lading, warehouse receipt or
other document at any time held by the Managing Agent, any other Letter of
Credit Issuer or held for their respective accounts by any of their
correspondents, in connection with any Letter of Credit, except to the extent
such claims, losses, liabilities, damages and expenses result from gross
negligence or willful misconduct on the part of the Managing Agent or any other
Letter of Credit Issuer.
10. Operations; Managing Agent.
10.1. Interests in Credits. The Percentage Interest of each
Lender in the Loan and Letters of Credit, and the related Commitments, shall be
computed based on the maximum principal amount for each Lender as set forth in
the Register, as from time to time in effect.
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The current Percentage Interests are set forth in Exhibit 10.1, which may be
updated by the Managing Agent from time to time to conform to the Register.
10.2. Agents' Authority to Act, etc. Each of the Lenders appoints
and authorizes (a) Bank of Boston to act for the Lenders as the Managing Agent
and (b) ▇▇▇▇▇ Fargo to act for the Lenders as the Collateral Agent, in each
case in connection with the transactions contemplated by this Agreement and the
other Credit Documents on the terms set forth herein and therein. In acting
hereunder, each Agent is acting for its own account to the extent of its
Percentage Interest and for the account of each other Lender to the extent of
the Lenders' respective Percentage Interests, and all action in connection with
the enforcement of, or the exercise of any remedies (other than the Lenders'
rights of set-off as provided in Section 8.2.4 or in any Credit Document) in
respect of the Credit Obligations and Credit Documents shall be taken by an
Agent.
10.3. Company to Pay Managing Agent, etc. The Company and each
Guarantor shall be fully protected in making all payments in respect of the
Credit Obligations to the Managing Agent, in relying upon consents,
modifications and amendments executed by the Managing Agent purportedly on the
Lenders' behalf, and in dealing with the Managing Agent as herein provided.
The Managing Agent may charge the accounts of the Company, on the dates when
the amounts thereof become due and payable, with the amounts of the principal
of and interest on the Loan, any amounts paid by the Letter of Credit Issuers
to third parties under Letters of Credit or drafts presented thereunder,
commitment fees, Letter of Credit fees and all other fees and amounts owing
under any Credit Document.
10.4. Lender Operations for Advances, Letters of Credit, etc.
10.4.1. Advances. On each Closing Date, each Lender
shall advance to the Managing Agent in immediately available funds
such Lender's Percentage Interest in the portion of the Loan advanced
on such Closing Date prior to 12:00 noon (Boston time). If such funds
are not received at such time, but all applicable conditions set forth
in Section 5 have been satisfied, each Lender authorizes and requests
the Managing Agent to advance for the Lender's account, pursuant to
the terms hereof, the Lender's respective Percentage Interest in such
portion of the Loan and agrees to reimburse the Managing Agent in
immediately available funds for the amount thereof prior to 2:00 p.m.
(Boston time) on the day any portion of the Loan is advanced
hereunder; provided, however, that the Managing Agent is not
authorized to make any such advance for the account of any Lender who
has previously notified the Managing Agent in writing that such Lender
will not be performing its obligations to make further advances
hereunder; and provided, further, that the Managing Agent shall be
under no obligation to make any such advance.
10.4.2. Letters of Credit. Each of the Lenders
authorizes and requests each Letter of Credit Issuer to issue the
Letters of Credit provided for in Section 2.3 and to
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grant each Lender a participation in each of such Letters of Credit in
an amount equal to its Percentage Interest in the amount of each such
Letter of Credit. Promptly upon the request of the Letter of Credit
Issuer, each Lender shall reimburse the Letter of Credit Issuer in
immediately available funds for such Lender's Percentage Interest in
the amount of all obligations to third parties incurred by the Letter
of Credit Issuer in respect of each Letter of Credit and each draft
accepted under a Letter of Credit to the extent not reimbursed by the
Company. The Letter of Credit Issuer will notify each Lender of the
issuance of any Letter of Credit, the amount and date of payment of
any draft drawn or accepted under a Letter of Credit and whether in
connection with the payment of any such draft the amount thereof was
added to the Revolving Loan or was reimbursed by the Company.
10.4.3. Managing Agent to Allocate Payments, etc. All
payments of principal and interest in respect of the extensions of
credit made pursuant to this Agreement, reimbursement of amounts paid
by any Letter of Credit Issuer to third parties under Letters of
Credit or drafts presented thereunder, commitment fees, Letter of
Credit fees and other fees under this Agreement shall, as a matter of
convenience, be made by the Company and the Guarantors to the Managing
Agent in immediately available funds. The share of each Lender shall
be credited to such Lender by the Managing Agent in immediately
available funds in such manner that the principal amount of the Credit
Obligations to be paid shall be paid proportionately in accordance
with the Lenders' respective Percentage Interests in such Credit
Obligations, except as otherwise provided in this Agreement. Under no
circumstances shall any Lender be required to produce or present its
Notes as evidence of its interests in the Credit Obligations in any
action or proceeding relating to the Credit Obligations.
10.4.4. Delinquent Lenders; Nonperforming Lenders. In
the event that any Lender fails to reimburse the Managing Agent
pursuant to Section 10.4.1 for the Percentage Interest of such lender
(a "Delinquent Lender") in any credit advanced by the Managing Agent
pursuant hereto, overdue amounts (the "Delinquent Payment") due from
the Delinquent Lender to the Managing Agent shall bear interest,
payable by the Delinquent Lender on demand, at a per annum rate equal
to (a) the Federal Funds Rate for the first three days overdue and (b)
the sum of 2% plus the Federal Funds Rate for any longer period. Such
interest shall be payable to the Managing Agent for its own account
for the period commencing on the date of the Delinquent Payment and
ending on the date the Delinquent Lender reimburses the Managing Agent
on account of the Delinquent Payment (to the extent not paid by any
Obligor as provided below) and the accrued interest thereon (the
"Delinquency Period"), whether pursuant to the assignments referred to
below or otherwise. Upon notice by the Managing Agent, the Company
will pay to the Managing Agent the principal (but not the interest)
portion of the Delinquent Payment. During the Delinquency Period, in
order to make reimbursements for the Delinquent Payment and accrued
interest thereon, the Delinquent Lender shall be deemed to have
assigned to the Managing Agent all
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interest, commitment fees and other payments made by the Company under
Section 3 that would have thereafter otherwise been payable under the
Credit Documents to the Delinquent Lender. During any other period in
which any Lender is not performing its obligations to extend credit
under Section 2 (a "Nonperforming Lender"), the Nonperforming Lender
shall be deemed to have assigned to each Lender that is not a
Nonperforming Lender (a "Performing Lender") all principal and other
payments made by the Company under Section 4 that would have
thereafter otherwise been payable under the Credit Documents to the
Nonperforming Lender. The Managing Agent shall credit a portion of
such payments to each Performing Lender in an amount equal to the
Percentage Interest of such Performing Lender in an amount equal to
the Percentage Interest of such Performing Lender divided by one minus
the Percentage Interest of the Nonperforming Lender until the
respective portions of the Loan owed to all the Lenders are the same
as the Percentage Interests of the Lenders immediately prior to the
failure of the Nonperforming Lender to perform its obligations under
Section 2. The foregoing provisions shall be in addition to any other
remedies the Managing Agent, the Performing Lenders or the Company may
have under law or equity against the Delinquent Lender as a result of
the Delinquent Payment or against the Nonperforming Lender as a result
of its failure to perform its obligations under Section 2.
10.5. Sharing of Payments, etc. Each Lender agrees that (a) if by
exercising any right of set-off or counterclaim or otherwise, it shall receive
payment of (i) a proportion of the aggregate amount due with respect to its
Percentage Interest in the Loan and Letter of Credit Exposure which is greater
than (ii) the proportion received by any other Lender in respect of the
aggregate amount due with respect to such other Lender's Percentage Interest in
the Loan and Letter of Credit Exposure and (b) if such inequality shall
continue for more than 10 days, the Lender receiving such proportionately
greater payment shall purchase participations in the Percentage Interests in
the Loan and Letter of Credit Exposure held by the other Lenders, and such
other adjustments shall be made from time to time (including rescission of such
purchases of participations in the event the unequal payment originally
received is recovered from such Lender through bankruptcy proceedings or
otherwise), as may be required so that all such payments of principal and
interest with respect to the Loan and Letter of Credit Exposure held by the
Lenders shall be shared by the Lenders pro rata in accordance with their
respective Percentage Interests; provided, however, that this Section 10.5
shall not impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to
the payment of Indebtedness of any Obligor other than such Obligor's
Indebtedness with respect to the Loan and Letter of Credit Exposure. Each
Lender that grants a participation in the Credit Obligations to a Credit
Participant shall require as a condition to the granting of such participation
that such Credit Participant agree to share payments received in respect of the
Credit Obligations as provided in this Section 10.5. The provisions of this
Section 10.5 are for the sole and exclusive benefit of the Lenders and no
failure of any Lender to comply with the terms hereof shall be available to any
Obligor as a defense to the payment of the Credit Obligations.
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10.6. Amendments, Consents, Waivers, etc. Except as otherwise set
forth herein, the Managing Agent may (and upon the written request of the
Required Lenders the Managing Agent shall) take or refrain from taking any
action under this Agreement or any other Credit Document, including giving its
written consent to any modification of or amendment to and waiving in writing
compliance with any covenant or condition in this Agreement or any other Credit
Document (other than an Interest Rate Protection Agreement) or any Default or
Event of Default, all of which actions shall be binding upon all of the
Lenders; provided, however, that:
(a) Except as provided below, without the written
consent of the Lenders owning at least two thirds of the Percentage
Interests (other than Delinquent Lenders during the existence of a
Delinquency Period so long as such Delinquent Lender is treated the
same as the other Lenders with respect to any actions enumerated
below), no written modification of, amendment to, consent with respect
to, waiver of compliance with or waiver of a Default under, any of the
Credit Documents (other than an Interest Rate Protection Agreement)
shall be made.
(b) Without the written consent of such Lenders as own
100% of the Percentage Interests (other than Delinquent Lenders during
the existence of a Delinquency Period so long as such Delinquent
Lender is treated the same as the other Lenders with respect to any
actions enumerated below):
(i) No reduction shall be made in (A) the
amount of principal of the Loan or reimbursement obligations
for payments made under Letters of Credit, (B) the interest
rate on the Loan (other than amendments and waivers that
modify defined terms used in calculating the Applicable
Margin or that waive an increase in the Applicable Rate as a
result of an Event of Default) or (C) the Letter of Credit
fees or commitment fees with respect to the credit facility
provided herein.
(ii) No change shall be made in the stated,
scheduled time of payment of all or any portion of the Loan
(other than amendments and waivers that modify defined terms
used in calculating Consolidated Excess Cash Flow) or
interest thereon or reimbursement of payments made under
Letters of Credit or fees relating to any of the foregoing
payable to all of the Lenders and no waiver shall be made of
any Default under Section 8.1.1.
(iii) No increase shall be made in the
amount, or extension of the term, of the stated Commitments
beyond that provided for under Section 2.
(iv) No alteration shall be made of the
Lenders' rights of set-off contained in Section 8.2.4.
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(v) No release of any Credit Security or of
any Guarantor shall be made (except that the Collateral
Agent may release particular items of Credit Security or
particular Guarantors in dispositions permitted by Section
6.11 and may release all Credit Security pursuant to Section
16 upon payment in full of the Credit Obligations and
termination of the Commitments without the written consent
of the Lenders).
(vi) No amendment to or modification of this
Section 10.6(b) shall be made.
10.7. Agent's Resignation. Either Agent may resign at any time by
giving at least 60 days' prior written notice of its intention to do so to each
of the Lenders and the Company and upon the appointment by the Required Lenders
of a successor Agent satisfactory to the Company. If no successor Managing
Agent shall have been so appointed and shall have accepted such appointment
within 45 days after the retiring Managing Agent's giving of such notice of
resignation, then the retiring Managing Agent may with the consent of the
Company, which shall not be unreasonably withheld, appoint a successor Managing
Agent which shall be a bank or a trust company organized under the laws of the
United States of America or any state thereof and having a combined capital,
surplus and undivided profit of at least $100,000,000; provided, however, that
any successor Managing Agent appointed under this sentence may be removed upon
the written request of the Required Lenders, which request shall also appoint a
successor Managing Agent satisfactory to the Company. Upon the resignation or
removal of the Collateral Agent, the Managing Agent shall act as Collateral
Agent. Upon the appointment of a new Managing Agent or Collateral Agent
hereunder, the term "Managing Agent" and "Collateral Agent", as the case may
be, shall for all purposes of this Agreement thereafter mean such successor.
After any retiring Agent's resignation hereunder as Agent, or the removal
hereunder of any successor Agent, the provisions of this Agreement shall
continue to inure to the benefit of such retiring or removed Agent as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
10.8. Concerning the Agents.
10.8.1. Action in Good Faith, etc. Each Agent and its
officers, directors, employees and agents shall be under no liability
to any of the Lenders or to any future holder of any interest in the
Credit Obligations for any action or failure to act taken or suffered
in good faith, and any action or failure to act in accordance with an
opinion of its counsel shall conclusively be deemed to be in good
faith. Each Agent shall in all cases be entitled to rely, and shall
be fully protected in relying, on instructions given to such Agent by
the required holders of Credit Obligations as provided in this
Agreement.
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10.8.2. No Implied Duties, etc. Each Agent shall have
and may exercise such powers as are specifically delegated to the
Agent under this Agreement or any other Credit Document together with
all other powers incidental thereto. The Agents shall have no implied
duties to any Person or any obligation to take any action under this
Agreement or any other Credit Document except for action specifically
provided for in this Agreement or any other Credit Document to be
taken by the Agent. Before taking any action under this Agreement or
any other Credit Document, any Agent may request an appropriate
specific indemnity satisfactory to it from each Lender in addition to
the general indemnity provided for in Section 10.11. Until the Agent
has received such specific indemnity, the Agent shall not be obligated
to take (although it may in its sole discretion take) any such action
under this Agreement or any other Credit Document. Each Lender
confirms that the Agents do not have a fiduciary relationship to it
under the Credit Documents. Each of the Company and its Subsidiaries
party hereto confirms that neither Agent nor any other Lender has a
fiduciary relationship to it under the Credit Documents.
10.8.3. Validity, etc. The Agents shall not be
responsible to any Lender or any future holder of any interest in the
Credit Obligations (a) for the legality, validity, enforceability or
effectiveness of this Agreement or any other Credit Document, (b) for
any recitals, reports, representations, warranties or statements
contained in or made in connection with this Agreement or any other
Credit Document, (c) for the existence or value of any assets included
in any security for the Credit Obligations, (d) for the effectiveness
of any Lien purported to be included in the Credit Security, (e) for
the specification or failure to specify any particular assets to be
included in the Credit Security, or (f) unless the Collateral Agent
shall have failed to comply with Section 10.8.1, for the perfection of
the security interests in the Credit Security.
10.8.4. Compliance. The Agents shall not be obligated
to ascertain or inquire as to the performance or observance of any of
the terms of this Agreement or any other Credit Document; and in
connection with any extension of credit under this Agreement or any
other Credit Document, the Agents shall be fully protected in relying
on a certificate of the Company as to the fulfillment by the Company
of any conditions to such extension of credit.
10.8.5. Employment of Agents and Counsel. The Agents
may execute any of its duties as Agent under this Agreement or any
other Credit Document by or through employees, agents and
attorneys-in-fact and shall not be responsible to any of the Lenders,
the Company or any other Obligor for the default or misconduct of any
such Managing Agents or attorneys-in-fact selected by the Agent acting
in good faith. The Agents shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and
their duties hereunder or under any other Credit Document.
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10.8.6. Reliance on Documents and Counsel. The Agents
shall be entitled to rely, and shall be fully protected in relying,
upon any affidavit, certificate, cablegram, consent, instrument,
letter, notice, order, document, statement, telecopy, telegram, telex
or teletype message or writing reasonably believed in good faith by
the Agents to be genuine and correct and to have been signed, sent or
made by the Person in question, including any telephonic or oral
statement made by such Person, and, with respect to legal matters,
upon an opinion or the advice of counsel selected by the Agent.
10.8.7. Agent's Reimbursement. Each of the Lenders
severally agrees to reimburse the Agents, in the amount of such
Lender's Percentage Interest, for any reasonable expenses not
reimbursed by the Company or the Guarantors (without limiting the
obligation of the Company or the Guarantors to make such
reimbursement): (a) for which any Agent is entitled to reimbursement
by the Company or the Guarantors under this Agreement or any other
Credit Document, and (b) after the occurrence of a Default, for any
other reasonable expenses incurred by the Agents on the Lenders'
behalf in connection with the enforcement of the Lenders' rights under
this Agreement or any other Credit Document; provided, however, that
the Agents shall not be reimbursed for any such expenses arising as a
result of their gross negligence or willful misconduct.
10.9. Rights as a Lender. With respect to any credit extended by
it hereunder, Bank of Boston and ▇▇▇▇▇ Fargo shall have the same rights,
obligations and powers hereunder as any other Lender and may exercise such
rights and powers as though it were not an Agent, and unless the context
otherwise specifies, Bank of Boston and ▇▇▇▇▇ Fargo shall be treated in its
individual capacity as though it were not an Agent hereunder. Without limiting
the generality of the foregoing, the Percentage Interest of Bank of Boston and
▇▇▇▇▇ Fargo shall be included in any computations of Percentage Interests.
Bank of Boston and ▇▇▇▇▇ Fargo and their respective Affiliates may accept
deposits from, lend money to, act as trustee for and generally engage in any
kind of banking or trust business with the Company, any of its Subsidiaries or
any Affiliate of any of them and any Person who may do business with or own an
equity interest in the Company, any of its Subsidiaries or any Affiliate of any
of them, all as if Bank of Boston and ▇▇▇▇▇ Fargo were not Agents and without
any duty to account therefor to the other Lenders.
10.10. Independent Credit Decision. Each of the Lenders
acknowledges that it has independently and without reliance upon the Agents,
based on the financial statements and other documents referred to in Section
7.2, on the other representations and warranties contained herein and on such
other information with respect to the Company and its Subsidiaries as such
Lender deemed appropriate, made such Lender's own credit analysis and decision
to enter into this Agreement and to make the extensions of credit provided for
hereunder. Each Lender represents to the Agents that such Lender will continue
to make its own independent credit and other decisions in taking or not taking
action under this Agreement
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or any other Credit Document. Each Lender expressly acknowledges that neither
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to such Lender, and no
act by such Agent taken under this Agreement or any other Credit Document,
including any review of the affairs of the Company and its Subsidiaries, shall
be deemed to constitute any representation or warranty by the Agents. Except
for notices, reports and other documents expressly required to be furnished to
each Lender by the Agents under this Agreement or any other Credit Document,
the Agents shall not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business, operations, property,
condition, financial or otherwise, or creditworthiness of the Company or any
Subsidiary which may come into the possession of the Agents or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
10.11. Indemnification. The holders of the Credit Obligations
shall indemnify the Agents and their respective officers, directors, employees,
agents, attorneys, accountants, consultants and controlling Persons (to the
extent not reimbursed by the Obligors and without limiting the obligation of
any of the Obligors to do so), pro rata in accordance with their respective
Percentage Interests, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time be imposed on,
incurred by or asserted against the Agents or such Persons relating to or
arising out of this Agreement, any other Credit Document, the transactions
contemplated hereby or thereby, or any action taken or omitted by the Agents in
connection with any of the foregoing; provided, however, that the foregoing
shall not extend to actions or omissions which are taken by the Agents with
gross negligence or willful misconduct.
11. Successors and Assigns; Lender Assignments and Participations. Any
reference in this Agreement or any other Credit Document to any of the parties
hereto shall be deemed to include the successors and assigns of such party, and
all covenants and agreements by or on behalf of the Company, the other
Obligors, the Managing Agent, the Collateral Agent or the Lenders that are
contained in this Agreement or any other Credit Document shall bind and inure
to the benefit of their respective successors and assigns; provided, however,
that (a) the Company and its Subsidiaries may not assign their rights or
obligations under this Agreement or any other Credit Document except for
mergers or liquidations permitted by Section 6.11, and (b) the Lenders shall be
not entitled to assign their respective Percentage Interests in the credits
extended hereunder or their Commitments except as set forth below in this
Section 11.
11.1. Assignments by Lenders.
11.1.1. Assignees and Assignment Procedures. Each
Lender may (a) without the consent of the Managing Agent or the
Company if the proposed assignee is already a Lender hereunder or a
Wholly Owned Subsidiary of the same corporate parent of which the
assigning Lender is a Subsidiary, or (b) otherwise with the consents
of the Managing Agent and (so long as no Event of Default exists) the
Company (which
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consents will not be unreasonably withheld), in compliance with
applicable laws in connection with such assignment, assign to one or
more commercial banks or other financial institutions (each, an
"Assignee") all or a portion of its interests, rights and obligations
under this Agreement and the other Credit Documents, including all or
a portion, which need not be pro rata between the Loan and the Letter
of Credit Exposure, of its Commitment, the portion of the Loan and
Letter of Credit Exposure at the time owing to it and the Notes held
by it, but excluding its rights and obligations as a Letter of Credit
Issuer; provided, however, that:
(i) the aggregate amount of the Commitment of
the assigning Lender subject to each such assignment to any
Assignee other than another Lender (determined as of the
date the Assignment and Acceptance with respect to such
assignment is delivered to the Managing Agent) shall be not
less than $5,000,000 and in increments of $1,000,000; and
(ii) the parties to each such assignment
shall execute and deliver to the Managing Agent an
Assignment and Acceptance (the "Assignment and Acceptance")
substantially in the form of Exhibit 11.1.1, together with
the Note subject to such assignment and a processing and
recordation fee of $3,500 payable to the Managing Agent by
the assigning Lender or the Assignee.
Upon acceptance and recording pursuant to Section 11.1.4, from and
after the effective date specified in each Assignment and Acceptance
(which effective date shall be at least five Banking Days after the
execution thereof unless waived by the Managing Agent):
(A) the Assignee shall be a party hereto and, to the
extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender under
this Agreement and
(B) the assigning Lender shall, to the extent provided
in such assignment, be released from its
obligations under this Agreement (and, in the case
of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of
Sections 3.2.4, 3.5 and 9, as well as to any fees
accrued for its account hereunder and not yet
paid).
11.1.2. Terms of Assignment and Acceptance. By
executing and delivering an Assignment and Acceptance, the assigning
Lender and Assignee shall be deemed to confirm to and agree with each
other and the other parties hereto as follows:
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(a) other than the representation and warranty that it
is the legal and beneficial owner of the interest being assigned
thereby free and clear of any adverse claim, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
any other Credit Document or any other instrument or document
furnished pursuant hereto;
(b) such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of the Company and its Subsidiaries or the performance or
observance by the Company or any of its Subsidiaries of any of its
obligations under this Agreement, any other Credit Document or any
other instrument or document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy
of this Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 7.2 or Section 6.4 and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such Assignee will independently and without
reliance upon the Managing Agent, such assigning Lender or any other
Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement;
(e) such Assignee appoints and authorizes the Managing
Agent to take such action as Managing Agent on its behalf and to
exercise such powers under this Agreement as are delegated to the
Managing Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and
(f) such Assignee agrees that it will perform in
accordance with the terms of this Agreement all the obligations which
are required to be performed by it as a Lender.
11.1.3. Register. The Managing Agent shall maintain at
the Boston Office a register (the "Register") for the recordation of
(a) the names and addresses of the Lenders and the Assignees which
assume rights and obligations pursuant to an assignment under Section
11.1.1, (b) the Percentage Interest of each such Lender as set forth
in Exhibit 10.1 and (c) the amount of the Loan and Letter of Credit
Exposure owing to each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and
the Company, the Agents and the Lenders may treat each Person whose
name is registered therein for all purposes as a party to this
Agreement. The Register shall be available for inspection by the
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Company or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
11.1.4. Acceptance of Assignment and Assumption. Upon
its receipt of a completed Assignment and Acceptance executed by an
assigning Lender and an Assignee together with the Note subject to
such assignment, and the processing and recordation fee referred to in
Section 11.1.1, the Managing Agent shall (a) accept such Assignment
and Acceptance, (b) record the information contained therein in the
Register and (c) give prompt notice thereof to the Company. Within
five Banking Days after receipt of notice, the Company, at its own
expense, shall execute and deliver to the Managing Agent, in exchange
for the surrendered Note, a new Note to the order of such Assignee in
a principal amount equal to the applicable Commitment and Loan assumed
by it pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment and Loan, a new Note to the order of
such assigning Lender in a principal amount equal to the applicable
Commitment and Loan retained by it. Such new Note shall be in an
aggregate principal amount equal to the aggregate principal amount of
such surrendered Note, and shall be dated the date of the surrendered
Note which it replaces.
11.1.5. Federal Reserve Bank. Notwithstanding the
foregoing provisions of this Section 11, any Lender may at any time
pledge or assign all or any portion of such Lender's rights under this
Agreement and the other Credit Documents to a Federal Reserve Bank;
provided, however, that no such pledge or assignment shall release
such Lender from such Lender's obligations hereunder or under any
other Credit Document.
11.1.6. Further Assurances. The Company and its
Subsidiaries shall sign such documents and take such other actions
from time to time reasonably requested by an Assignee to enable it to
share in the benefits of the rights created by the Credit Documents.
11.2. Credit Participants. Each Lender may, without the consent
of the Company or the Managing Agent, in compliance with applicable laws in
connection with such participation, sell to one or more commercial banks or
other financial institutions (each a "Credit Participant") participations in
all or a portion of its interests, rights and obligations under this Agreement
and the other Credit Documents (including all or a portion of its Commitment,
the Loan and Letter of Credit Exposure owing to it and the Note held by it);
provided, however, that:
(a) such Lender's obligations under this Agreement
shall remain unchanged;
(b) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations;
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(c) the Credit Participant shall be entitled to the
benefit of the cost protection provisions contained in Sections 3.2.4,
3.5 and 9, but shall not be entitled to receive any greater payment
thereunder than the selling Lender would have been entitled to receive
with respect to the interest so sold if such interest had not been
sold; and
(d) the Company, the Managing Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right as one of the
Lenders to vote with respect to the enforcement of the obligations of
the Company relating to the Loan and Letter of Credit Exposure and the
approval of any amendment, modification or waiver of any provision of
this Agreement (other than amendments, modifications, consents or
waivers described in clause (b) of the proviso to Section 10.6).
Each Obligor agrees, to the fullest extent permitted by applicable law, that
any Credit Participant and any Lender purchasing a participation from another
Lender pursuant to Section 10.5 may exercise all rights of payment (including
the right of set-off), with respect to its participation as fully as if such
Credit Participant or such Lender were the direct creditor of the Obligors and
a Lender hereunder in the amount of such participation.
11.3. Replacement of Lender. In the event that any Lender or, to
the extent applicable, any Credit Participant (the "Affected Lender"):
(a) fails to perform its obligations to fund any
portion of the Loan or to issue any Letter of Credit on any Closing
Date when required to do so by the terms of the Credit Documents, or
fails to provide its portion of any Eurodollar Pricing Option pursuant
to Section 3.2.1 or on account of a Legal Requirement as contemplated
by Section 3.2.5;
(b) demands payment under the provisions of Section 3.5
in an amount the Company deems materially in excess of the amounts
with respect thereto demanded by the other Lenders;
(c) refuses to consent to a proposed extension of the
Final Maturity Date that is consented to by the other Lenders; or
(d) refuses to consent to a proposed amendment,
modification, waiver or other action requiring consent of the holders
of 100% of the Percentage Interests under Section 10.6(b) that is
consented to by the other Lenders;
then, so long as no Event of Default exists, the Company shall have the right
to seek a replacement lender which is reasonably satisfactory to the Managing
Agent (the "Replacement Lender"). The Replacement Lender shall purchase the
interests of the Affected Lender in the
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Loan, Letters of Credit and its Commitment and shall assume the
obligations of the Affected Lender hereunder and under the other
Credit Documents upon execution by the Replacement Lender of an
Assignment and Acceptance and the tender by it to the Affected Lender
of a purchase price agreed between it and the Affected Lender (or, if
they are unable to agree, a purchase price in the amount of the
Affected Lender's Percentage Interest in the Loan and Letter of Credit
Exposure, or appropriate credit support for contingent amounts
included therein, and all other outstanding Credit Obligations then
owed to the Affected Lender). No assignment fee pursuant to Section
11.1.1(ii) shall be required in connection with such assignment. Such
assignment by the Affected Lender shall be deemed an early termination
of any Eurodollar Pricing Option to the extent of the Affected
Lender's portion thereof, and the Company will pay to the Affected
Lender any resulting amounts due under Section 3.2.4. Upon
consummation of such assignment, the Replacement Lender shall become
party to this Agreement as a signatory hereto and shall have all the
rights and obligations of the Affected Lender under this Agreement and
the other Credit Documents with a Percentage Interest equal to the
Percentage Interest of the Affected Lender, the Affected Lender shall
be released from its obligations hereunder and under the other Credit
Documents, and no further consent or action by any party shall be
required. Upon the consummation of such assignment, the Company, the
Managing Agent and the Affected Lender shall make appropriate
arrangements so that a new Revolving Note is issued to the Replacement
Lender if it has acquired a portion of the Revolving Loan. The
Company and the Guarantors shall sign such documents and take such
other actions reasonably requested by the Replacement Lender to enable
it to share in the benefits of the rights created by the Credit
Documents. Until the consummation of an assignment in accordance with
the foregoing provisions of this Section 11.3, the Company shall
continue to pay to the Affected Lender any Credit Obligations as they
become due and payable.
12. Confidentiality. Each Lender will make no disclosure of confidential
information furnished to it by the Company or any of its Subsidiaries unless
such information shall have become public, except:
(a) in connection with operations under or the
enforcement of this Agreement or any other Credit Document to Persons
who have a reasonable need to be furnished such confidential
information and who agree to comply with the restrictions contained in
this Section 12 with respect to such information;
(b) pursuant to any statutory or regulatory requirement
or any mandatory court order, subpoena or other legal process;
(c) to any parent or corporate Affiliate of such Lender
or to any Credit Participant, proposed Credit Participant or proposed
Assignee; provided, however, that any such Person shall agree to
comply with the restrictions set forth in this Section 12 with respect
to such information;
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(d) to its independent counsel, auditors and other
professional advisors with an instruction to such Person to keep such
information confidential; and
(e) with the prior written consent of the Company, to
any other Person.
13. Foreign Lenders. If any Lender is not incorporated or organized under
the laws of the United States of America or a state thereof, such Lender shall
deliver to the Company and the Managing Agent the following:
(a) Two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224 or successor form, as the case may
be, certifying in each case that such Person is entitled to receive
payments under this Agreement, the Notes and reimbursement obligations
under Letters of Credit payable to it, without deduction or
withholding of any United States federal income taxes; and
(b) A duly completed Internal Revenue Service Form W-8
or W-9 or successor form, as the case may be, to establish an
exemption from United States backup withholding tax.
Each such Lender that delivers to the Company and the Managing Agent a
Form 1001 or 4224 and Form W-8 or W-9 pursuant to this Section 13 further
undertakes to deliver to the Company and the Managing Agent two further copies
of Form 1001 or 4224 and Form W-8 or W-9, or successor applicable form, or
other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Company and the Managing Agent. Such Forms 1001 or 4224 shall certify that
such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes. The
foregoing documents need not be delivered in the event any change in treaty,
law or regulation or official interpretation thereof has occurred which renders
all such forms inapplicable or which would prevent such Lender from delivering
any such form with respect to it, or such Lender advises the Company that it is
not capable of receiving payments without any deduction or withholding of
United States federal income tax and, in the case of a Form W-8 or W-9,
establishing an exemption from United States backup withholding tax. Until
such time as the Company and the Managing Agent have received such forms
indicating that payments hereunder are not subject to United States withholding
tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Company shall withhold taxes from such payments at the applicable statutory
rate without regard to Section 3.5.
14. Notices. Except as otherwise specified in this Agreement or any other
Credit Document, any notice required to be given pursuant to this Agreement or
any other Credit Document shall be given in writing. Any notice, consent,
approval, demand or other communication in connection with this Agreement or
any other Credit Document shall be deemed to be given if given in writing
(including telex, telecopy or similar teletransmission)
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addressed as provided below (or to the addressee at such other address as the
addressee shall have specified by notice actually received by the addressor),
and if either (a) actually delivered in fully legible form to such address
(evidenced in the case of a telex by receipt of the correct answerback) or (b)
in the case of a letter, unless actual receipt of the notice is required by any
Credit Document five days shall have elapsed after the same shall have been
deposited in the United States mails, with first-class postage prepaid and
registered or certified.
If to the Company or any of its Subsidiaries, to it at its address set
forth in Exhibit 7.1 (as supplemented pursuant to Sections 6.4.1 and 6.4.2), to
the attention of the chief financial officer.
If to any Lender or any Agent, to it at its address set forth on the
signature pages of this Agreement or in the Register, with a copy to the
Managing Agent.
15. Course of Dealing; Amendments and Waivers. No course of dealing
between any Lender or the Managing Agent, on one hand, and the Company or any
other Obligor, on the other hand, shall operate as a waiver of any of the
Lenders' or the Managing Agent's rights under this Agreement or any other
Credit Document or with respect to the Credit Obligations. Each of the Company
and the Guarantors acknowledges that if the Lenders or the Managing Agent,
without being required to do so by this Agreement or any other Credit Document,
give any notice or information to, or obtain any consent from, the Company or
any other Obligor, the Lenders and the Managing Agent shall not by implication
have amended, waived or modified any provision of this Agreement or any other
Credit Document, or created any duty to give any such notice or information or
to obtain any such consent on any future occasion. No delay or omission on the
part of any Lender or the Managing Agent in exercising any right under this
Agreement or any other Credit Document or with respect to the Credit
Obligations shall operate as a waiver of such right or any other right
hereunder or thereunder. A waiver on any one occasion shall not be construed
as a bar to or waiver of any right or remedy on any future occasion. No
waiver, consent or amendment with respect to this Agreement or any other Credit
Document shall be binding unless it is in writing and signed by the Managing
Agent or the Required Lenders.
16. Defeasance. When all Credit Obligations have been paid, performed and
reasonably determined by the Lenders to have been indefeasibly discharged in
full, and if at the time no Lender continues to be committed to extend any
credit to the Company hereunder or under any other Credit Document, this
Agreement and the other Credit Documents shall terminate and, at the Company's
written request, accompanied by such certificates and other items as the
Managing Agent shall reasonably deem necessary, the Credit Security shall
revert to the Obligors and the right, title and interest of the Lenders therein
shall terminate. Thereupon, on the Obligors' demand and at their cost and
expense, the Managing Agent and the Collateral Agent shall execute proper
instruments, acknowledging satisfaction of and discharging this Agreement and
the other Credit Documents, and shall redeliver to the Obligors any Credit
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Security then in its possession; provided, however, that Sections 3.2.4, 3.5,
9, 10.8.7, 10.11, 12, 16 and 19 shall survive the termination of this
Agreement.
17. Venue; Service of Process. Each of the Company and the other Obligors:
(a) Irrevocably submits to the nonexclusive
jurisdiction of the state courts of The Commonwealth of Massachusetts
and to the nonexclusive jurisdiction of the United States District
Court for the District of Massachusetts for the purpose of any suit,
action or other proceeding arising out of or based upon this Agreement
or any other Credit Document or the subject matter hereof or thereof.
(b) Waives to the extent not prohibited by applicable
law that cannot be waived, and agrees not to assert, by way of motion,
as a defense or otherwise, in any such proceeding brought in any of
the above-named courts, any claim that it is not subject personally to
the jurisdiction of such court, that its property is exempt or immune
from attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of such proceeding is improper, or
that this Agreement or any other Credit Document, or the subject
matter hereof or thereof, may not be enforced in or by such court.
Each of the Company and the other Obligors consents to service of process in
any such proceeding in any manner at the time permitted by Chapter 223A of the
General Laws of The Commonwealth of Massachusetts and agrees that service of
process by registered or certified mail, return receipt requested, at its
address specified in or pursuant to Section 14 is reasonably calculated to give
actual notice.
18. Maximum Interest.
18.1. No Interest in Excess of Maximum Interest. It is the
intention of the parties hereto to conform strictly to applicable usury laws.
Accordingly, notwithstanding any provision to the contrary in this Agreement,
the Notes, the other Credit Documents or in any of the documents securing or
guarantying payment hereof or otherwise relating hereto, or in any
communication or writing by the Managing Agent, the Lenders, or any of them, or
any other Person, relating to the Loan, whether now or hereafter arising, in no
event or contingency shall this Agreement or such instruments or documents,
communications or writings permit or require the payment of any sums which
constitute interest under applicable law, or permit or require the charging,
taking, reserving or receiving by the Managing Agent, the Lenders, or any of
them, or any other Person, of any sums which constitute interest under
applicable law, in excess of the maximum amount permitted by such law. If any
excess interest otherwise would be deemed to be contracted for, charged, taken,
reserved or received under this Agreement, the Notes, the other Credit
Documents or under the terms of any of the documents, communications or writing
by the Agent, the Lenders or any of them, or any other Person, securing payment
thereof or otherwise relating thereto, or in the event the maturity of
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the Notes is accelerated in whole or in part, or in the event all or part of
the principal or interest on the Notes shall be prepaid, then it is agreed as
follows: (i) any excess or unearned interest contracted for, charged, taken,
reserved, or received, shall be deemed a mistake and canceled automatically,
without the necessity of any other communication or writing by the Agent, the
Lenders, or any of them, or any other Person, (ii) any excess or unearned
interest which is paid shall be credited to the unpaid principal amount hereof
or, to the extent the unpaid principal amount hereof shall have been or would
be paid in full, refunded to the Company or the other Obligors, as the case may
be, at the holder's option and (iii) this Agreement, the Notes, the other
Credit Documents or document securing payment thereof or otherwise relating
thereto, communication or writing, as the case may be, shall be reformed
automatically to permit only the payment, charging, taking, reserving or
receiving of accrued unpaid interest at the maximum lawful rate. Without
limiting the foregoing, in determining the maximum amount of lawful interest
under this Agreement, the Notes, the other Credit Documents or under such other
documents or instruments which are made for the purpose of determining such
rate, all interest at any time contracted for, charged, taken, reserved or
received from the Company, the other Obligors or otherwise by the holder or
holders thereof in connection with the Notes, the other Credit Documents or
this Agreement, shall be amortized, prorated, allocated and spread, to the full
extent permitted by applicable law, during the period of the full term of the
Loan, taking into account all renewal and extension periods.
18.2. Incorporation by Reference. The provisions set forth in
this Section 18 shall be deemed to be incorporated into each of the documents
executed in connection with this Agreement, the Notes, the other Credit
Documents or under the terms of any of the documents securing payment thereof
or otherwise relating thereto, and in every communication and writing relating
to this Agreement, the Notes, the other Credit Documents or under the terms of
any of the documents securing payment thereof or otherwise relating thereto,
now or hereafter arising, whether or not the same expressly references the
preceding paragraph, and may and all figures set forth therein shall, for the
purpose of determining the extent of the indebtedness set forth or asserted
therein, or otherwise contracted for, charged, taken, reserved or received, as
applicable, be recomputed automatically by the Company or the other Obligors,
or by any court with proper jurisdiction considering the same, or both, as
necessary to give effect to the adjustments and credits required and agreed
upon therein and the other agreements set forth therein, without the necessity
of any other communication or writing.
18.3. Changes in Usury Laws. If the applicable state or federal
usury law is amended after the date hereof to permit a greater rate of interest
to be contracted for, charged, taken, reserved or received under this
Agreement, the Notes, the other Credit Documents or under the terms of any of
the documents securing payment thereof otherwise relating thereto, than is
permitted under applicable state or federal law as of the date hereof, then the
maximum lawful rate of interest applicable to this Agreement, the Notes, the
other Credit Documents or under the terms of any of the documents securing
payment thereof otherwise relating thereto, shall be increased to the maximum
rate of interest allowed by such subsequent law or
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amendment, to be effective as of the effective date of such law or amendment,
and such additional charges that may become owing by reason of such increase
shall be payable on demand.
19. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
THAT CANNOT BE WAIVED, EACH OF THE COMPANY, THE OTHER OBLIGORS, THE AGENTS AND
THE LENDERS WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY CREDIT
OBLIGATION OR IN ANY WAY CONNECTED WITH THE DEALINGS OF THE LENDERS, THE
AGENTS, THE COMPANY OR ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF THE ABOVE,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT,
TORT OR OTHERWISE. Each of the Company and the other Obligors acknowledges
that it has been informed by the Managing Agent that the provisions of this
Section 19 constitute a material inducement upon which each of the Lenders has
relied and will rely in entering into this Agreement and any other Credit
Document, and that it has reviewed the provisions of this Section 19 with its
counsel. Any Lender, any Agent, the Company or any other Obligor may file an
original counterpart or a copy of this Section 19 with any court as written
evidence of the consent of the Company, the other Obligors, such Agent and the
Lenders to the waiver of their rights to trial by jury.
20. DTPA WAIVER. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW
FROM TIME TO TIME IN EFFECT, THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES THE PROVISIONS OF THE
TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT (TEXAS BUSINESS AND
COMMERCE CODE, CHAPTER 17, SECTIONS 17.41-17.63).
21. General. All covenants, agreements, representations and warranties
made in this Agreement or any other Credit Document or in certificates
delivered pursuant hereto or thereto shall be deemed to have been relied on by
each Lender, notwithstanding any investigation made by any Lender on its
behalf, and shall survive the execution and delivery to the Lenders hereof and
thereof. The invalidity or unenforceability of any provision hereof shall not
affect the validity or enforceability of any other provision hereof. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof. This Agreement and the other
Credit Documents constitute the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all prior and
contemporaneous understandings and agreements, whether written or oral. This
Agreement may be executed in any number of counterparts which together shall
constitute one instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE
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WITH THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE COMMONWEALTH OF
MASSACHUSETTS.
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
ATC TOWER CORP.
GRITZ TOWER MAINTENANCE COMPANY
WESTARK TOWERS, INCORPORATED
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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As Vice President of each of the
foregoing corporations
ATC-PRIME I, L.L.C.
ATC-PRIME II, L.L.C.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
As President of each of the
foregoing companies
THE FIRST NATIONAL BANK OF BOSTON
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Director
The First National Bank of Boston
Media and Communications
Division
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 940581
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NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Vice President
▇▇▇▇▇ Fargo Bank (Texas)
National Association
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