EXHIBIT 10.1
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THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") is entered into as of May 14, 2003, by and among SpectraSite
Communications, Inc., a Delaware corporation (the "Borrower"), SpectraSite, Inc.
(formerly known as SpectraSite Holdings, Inc.), a Delaware corporation
("Holdco"), Canadian Imperial Bank of Commerce, as administrative agent (the
"Administrative Agent") and the other Credit Parties signatory hereto (the
"Credit Parties").
W I T N E S S E T H:
WHEREAS, the Borrower, Holdco, the Administrative Agent and the Credit
Parties are parties to that certain Amended and Restated Credit Agreement dated
as of February 22, 2001, as amended by that certain First Amendment to Amended
and Restated Credit Agreement dated as of October 31, 2001, as amended by that
certain Second Amendment to Amended and Restated Credit Agreement dated as of
August 14, 2002 (as further amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, Holdco,
CIBC World Markets Corp. and Credit Suisse First Boston, as joint lead arrangers
and bookrunners (the "Lead Arrangers"), CIBC World Markets Corp., Credit Suisse
First Boston, Bank of Montreal, Chicago Branch and TD Securities (USA) Inc., as
arrangers (the "Arrangers"), Credit Suisse First Boston, as syndication agent
(the "Syndication Agent"), Bank of Montreal, Chicago Branch and TD Securities
(USA) Inc., as co-documentation agents (the "Documentation Agents"), the
Administrative Agent and the other Credit Parties (as defined in the Credit
Agreement) party thereto; and
WHEREAS, the Borrower has requested, and the Administrative Agent and
the Credit Parties have agreed, to amend the Credit Agreement as and to the
extent set forth herein; and
NOW THEREFORE, in consideration of the premises set forth above, the
terms and conditions contained herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree that all capitalized terms used herein shall have the meanings ascribed
thereto in the Credit Agreement, as amended hereby, except as otherwise defined
or limited herein, and further agree, subject to the conditions precedent to
this Amendment hereinafter set forth, as follows:
1. AMENDMENTS TO ARTICLE 1.
(a) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby modified and amended by adding the following definitions in appropriate
alphabetical order:
"'ADDITIONAL ACQUISITION AVAILABILITY' shall mean the sum of
all voluntary prepayments of the Term Loans made by the Borrower after
the Third Amendment Date pursuant to Section 2.5(b)(i) hereof and
funded solely from Net Cash Proceeds contributed by Holdco to the
Borrower or any of its Designated Subsidiaries with respect
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to any Eligible Debt Offering (other than any issuance of Specified
High-Yield Securities)."
"'SPECIFIED HIGH-YIELD SECURITIES' shall mean those Permitted
High-Yield Securities issued by Holdco after the Third Amendment Date
and yielding, in the aggregate, the first $150,000,000 of gross
proceeds to Holdco accruing after the Third Amendment Date."
"'SPECIFIED REDUCTION ASSETS' shall mean those Assets (other
than any Cingular Transaction Assets or any Assets comprising the
Network Services Business) sold, transferred or otherwise disposed of
by the Borrower or any of the Designated Subsidiaries with respect to
which the Borrower and the Designated Subsidiaries shall have received,
in the aggregate, the first $75,000,000 in Net Cash Proceeds accruing
from and after the Third Amendment Date."
"'THIRD AMENDMENT DATE' shall mean May 14, 2003"
(b) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the existing definitions of
"Acceptable Restructuring Plan," "Amendment Period," "Available Revolving
Commitment," "Chapter 11 Case," "Chapter 11 Funding Amount," "Court," "Domestic
SpectraSite Mexico Investments," "Foreign SpectraSite Mexico Investments,"
"Foreign SpectraSite Mexico Subsidiaries," "Holdco 6-3/4% Convertible Notes
(2010)," "Holdco 10-3/4% Notes (2010)," "Holdco 11-1/4% Notes (2009)," "Holdco
12% Notes (2008)," "Holdco 12-1/2% Notes (2010)," "Holdco 12-7/8% Notes (2010),"
"Holdco Notes," "Holdco Notes Indentures," "Indenture Trustee," "Permitted
Network Services Investments," "Revolving Loan Availability Date," "Tranche A
Commitment Reduction Date," "Tranche A Commitment Termination Date" and
"Unfunded Tranche A Commitment" in their entirety. Each reference to the term
"Available Revolving Commitment" in the Credit Agreement is hereby deleted and
the term "Revolving Commitment" substituted in lieu thereof.
(c) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the parenthetical "(other than
any Foreign SpectraSite Mexico Investments)" from the definition of "Foreign
Investments" in its entirety.
(d) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the parenthetical "(other than
any Foreign SpectraSite Mexico Subsidiaries)" from the definition of "Foreign
Subsidiaries" in its entirety.
(e) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by inserting the following proviso at the
end of the definition of "Funded Debt":
"; PROVIDED, HOWEVER, that notwithstanding anything in GAAP to the
contrary, for purposes of calculating Funded Debt, the amount of each
of the foregoing obligations shall be the full face or, in the case of
discount obligations, accreted amount of such obligations without
giving effect to any adjustments thereto which may be required under
GAAP"
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(f) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the existing definition of
"Holdco" and by substituting the following in lieu thereof:
"'HOLDCO' shall mean SpectraSite, Inc., a Delaware
corporation, formerly known as SpectraSite Holdings, Inc."
(g) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the existing definition of
"Permitted High-Yield Securities" and by substituting the following in lieu
thereof:
"'PERMITTED HIGH-YIELD SECURITIES' shall mean, collectively,
(a) preferred equity securities issued by the Borrower or Holdco, and
(b) other debt securities issued by Holdco (including, without
limitation, any debt securities convertible into Equity Interests of
Holdco), upon the Borrower's demonstration to the Lead Arrangers of the
Borrower's pro forma compliance with the Financial Covenants and
ability to make all payments of interest and principal when due with
respect to the Loans through the Final Maturity Date (with respect to
which any related Projections may show the final maturity of the Loans
being repaid with the proceeds of new borrowings as long as the
projected Borrower Leverage Ratio at the Final Maturity Date is no
greater than 1.00 to 1.00); PROVIDED, HOWEVER, that if such equity
securities are issued by the Borrower, such equity securities shall
have no creditor-like rights or remedies; PROVIDED FURTHER, HOWEVER,
that in each case, the terms and conditions of such securities (i)
shall provide, among other things, that (A) in the case of discount
notes, neither dividends nor interest shall be payable (I) in cash at
any time prior to February 22, 2004, or (II) at a coupon greater than
fifteen percent (15%); (B) in the case of any such debt or equity
securities with a cash pay component thereof, the aggregate principal
amount thereof and the interest or dividend rate applicable thereto
shall be no greater than the principal amount and/or the interest or
dividend rate with respect to which the Borrower shall have provided
the Credit Parties with revised Projections, satisfactory to the Lead
Arrangers, assuming issuance of such Permitted High-Yield Securities
and taking into account any Restricted Payments permitted to be made to
make interest or dividend payments with respect to such Permitted
High-Yield Securities and demonstrating the Borrower's pro forma
compliance with the Financial Covenants and ability to make all
payments of interest and principal when due with respect to the Loans
through the Final Maturity Date (which Projections may show the final
maturity of the Loans being repaid with the proceeds of new borrowings
as long as the projected Borrower Leverage Ratio at the Final Maturity
Date is no greater than 1.00 to 1.00); and (C) such securities shall
have no required cash redemptions (other than customary change of
control and asset sale redemption provisions) or principal maturities
prior to the day after the first anniversary of the Final Maturity
Date, and (ii) shall be otherwise reasonably acceptable to the Lead
Arrangers in all material respects."
(h) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting clauses (j) and (m) from the
definition of "Permitted Liens" and by substituting the following in lieu
thereof:
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"(j) Liens in favor of the Borrower or any wholly owned
Restricted Subsidiary of the Borrower, and Liens of any Foreign
Subsidiary (other than any Canadian Subsidiary) in favor of any wholly
owned Foreign Subsidiary (other than any Canadian Subsidiary), and
Liens of any Canadian Subsidiary in favor of any wholly owned Canadian
Subsidiary;"
"(m) negative pledges and other agreements not to create Liens
contained in any Permitted High Yield Securities and any other
Permitted Debt;"
(i) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the parenthetical in the
existing definition of "Restricted Investments" in its entirety and by
substituting "(other than Concourse Communications)" in lieu thereof.
(j) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the parenthetical in the
existing definition of "Restricted Subsidiaries" in its entirety and by
substituting "(other than Concourse Communications)" in lieu thereof.
(k) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the existing definition of
"Revolving Commitment" in its entirety and by substituting the following in lieu
thereof:
"'REVOLVING COMMITMENT' shall mean the several obligations of
certain of the Lenders to advance the sum of up to $200,000,000 to the
Borrower in accordance with their respective Revolving Commitment
Ratios, and as reduced from time to time, all pursuant to the terms
hereof."
(l) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the existing definition of
"Total Interest Expense" in its entirety and by substituting the following in
lieu thereof:
"'TOTAL INTEREST EXPENSE' shall mean, for any period, the sum
of (a) Borrower Interest Expense, (b) the amount of any Restricted
Payments made by the Borrower or any of the Designated Subsidiaries to
Holdco during such period for the purpose of making payments of
interest or dividends in respect of any Permitted High-Yield
Securities, and (c) the amount of any Restricted Payments made by the
Borrower during such period for the purpose of making payments of
dividends in respect of any Permitted High-Yield Securities of the
Borrower."
(m) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by adding the following sentence at the end
of the definition of "Tranche A Loans":
"As of the Third Amendment Date, the aggregate outstanding principal
amount of the Tranche A Loans is $301,694,172.00."
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(n) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by adding the following sentence at the end
of the definition of "Tranche B Loans":
"As of the Third Amendment Date, the aggregate outstanding principal
amount of the Tranche B Loans is $405,260,828.00."
(o) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the existing definition of
"Unfunded Commitment Percentage" in its entirety and by substituting the
following in lieu thereof:
"'UNFUNDED COMMITMENT PERCENTAGE' shall mean, as of the end of
any quarter, the percentage equivalent of a fraction, the numerator of
which is equal to (a) the result of the average daily amount during
such quarter, without duplication, of (i) the Revolving Commitment,
less (ii) the aggregate principal amount of Revolving Loans
outstanding, less (iii) the L/C Obligations outstanding, less (iv) the
aggregate principal amount of Swing Loans outstanding, and the
denominator of which is equal to (b) the average daily amount during
such quarter of the Revolving Commitment."
(p) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the existing definition of
"Unfunded Commitments" in its entirety and by substituting the following in lieu
thereof:
"'UNFUNDED COMMITMENTS' shall mean, as of any date of
determination, the sum of (a) the Revolving Commitment, less the
aggregate principal amount of Revolving Loans outstanding, less the L/C
Obligations outstanding, less the aggregate principal amount of Swing
Loans outstanding, and (b) the undrawn amount of all Incremental
Facility Commitments."
(q) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the parenthetical in the
existing definition of "Unrestricted Investments" in its entirety and by
substituting "(other than Concourse Communications, any Foreign Investments or
any Restricted Investments)" in lieu thereof.
(r) Article 1 of the Credit Agreement, DEFINITIONS, is
hereby further modified and amended by deleting the parenthetical in the
existing definition of "Unrestricted Subsidiaries" in its entirety and by
substituting "(other than Concourse Communications, any Foreign Subsidiaries or
any Restricted Subsidiaries)" in lieu thereof.
2. AMENDMENT TO SECTION 2.1. Section 2.1 of the Credit Agreement,
THE LOANS, is hereby modified and amended by deleting the reference to "One
Billion Eighty-Five Hundred Million Dollars ($1,085,000,000)" from the
introductory paragraph thereof and by substituting ", as of the Third Amendment
Date, Nine Hundred Six Million Nine Hundred Fifty-Five Thousand Dollars
($906,955,000)" in lieu thereof.
3. AMENDMENTS TO SECTION 2.3.
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(a) Section 2.3(a) of the Credit Agreement, ON BASE RATE
ADVANCES, is hereby modified and amended by deleting the first sentence
therefrom and by substituting the following in lieu thereof:
"Interest on each Base Rate Advance shall be computed on the basis of a
year of 365/366 days for the actual number of days elapsed and shall be
payable quarterly in arrears on the last Business Day of each calendar
quarter."
(b) Section 2.3(b) of the Credit Agreement, ON EURODOLLAR
ADVANCES, is hereby modified and amended by deleting the first sentence
therefrom and by substituting the following in lieu thereof:
"Interest on each Eurodollar Rate Advance shall be computed on the
basis of a 360-day year for the actual number of days elapsed and shall
be payable in arrears (i) on the applicable Payment Date for such
Advance, and (ii) if the Eurodollar Advance Period for such Eurodollar
Advance exceeds three (3) months, on every three (3) month anniversary
of such Eurodollar Advance."
(c) Section 2.3(f) of the Credit Agreement, APPLICABLE
MARGINS FOR BASE RATE ADVANCES AND EURODOLLAR ADVANCES, is hereby modified and
amended by deleting the introductory paragraph in clause (i) in its entirety and
substituting the following in lieu thereof:
"ADVANCES UNDER THE REVOLVING COMMITMENT OR OF THE TRANCHE A
LOANS. With respect to any Advance under the Revolving Commitment, or
any Advance of the Tranche A Loans, the Applicable Margin shall be the
interest rate margin based upon the Borrower Leverage Ratio for the
most recent fiscal quarter end, effective as of the second (2nd)
Business Day after the financial statements referred to in Section 7.1
hereof are delivered by the Borrower to the Administrative Agent for
the fiscal quarter of the Borrower most recently ended, expressed as a
per annum rate of interest as follows:"
(d) Section 2.3(f) of the Credit Agreement, APPLICABLE
MARGINS FOR BASE RATE ADVANCES AND EURODOLLAR ADVANCES, is hereby further
modified and amended by deleting clause (ii) in its entirety and substituting
the following in lieu thereof:
"(ii) ADVANCES OF THE TRANCHE B LOANS. With respect to any
Advance of the Tranche B Loans, the Applicable Margin shall be, (A)
4.00% per annum with respect to any Eurodollar Advance and (B) 2.75%
per annum with respect to any Base Rate Advance."
4. AMENDMENTS TO SECTION 2.4.
(a) Section 2.4(a) of the Credit Agreement, COMMITMENT
FEES, is hereby modified and amended by deleting the second sentence therefrom
(beginning with "Such commitment fees...") and substituting the following in
lieu thereof:
"Such commitment fees shall be computed on the basis of a year of
365/366 days for the actual number of days elapsed, shall be payable
quarterly in arrears on the last Business
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Day of each calendar quarter, shall be fully earned when due, and shall
be non-refundable when paid."
(b) Section 2.4(b) of the Credit Agreement, LETTER OF
CREDIT FEE, is hereby modified and amended by deleting the second sentence
therefrom (beginning with "Such letter of credit fee...") and by substituting
the following in lieu thereof:
"Such letter of credit fee shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter during which
such Letter of Credit is outstanding, and any accrued and unpaid letter
of credit fees shall also be due and payable on the Initial Maturity
Date."
(c) Section 2.4(c) of the Credit Agreement, ISSUING BANK
FEE, is hereby modified and amended by deleting the first sentence therefrom and
by substituting the following in lieu thereof:
"The Borrower agrees to pay to the Issuing Bank, for its own account,
an issuing bank fee in Dollars in the amount of such Issuing Bank's
customary fee with respect to the issuance of a Letter of Credit
calculated on the Dollar Equivalent Amount of the currency in which
such Letter of Credit is denominated on the stated amount of each
Letter of Credit issued by such Issuing Bank hereunder, which fee shall
be due and payable quarterly in arrears on the last Business Day of
each calendar quarter in which such Letter of Credit is outstanding."
5. AMENDMENTS TO SECTION 2.5.
(a) Section 2.5(b)(ii) of the Credit Agreement,
APPLICATION OF PAYMENTS OR REDUCTIONS, is hereby modified and amended by adding
the following sentence at the end of clause (A) thereof:
"Notwithstanding anything to the contrary contained in the foregoing,
to the extent that the Borrower shall fund any prepayment of the Term
Loans from Net Cash Proceeds contributed by Holdco to the Borrower or
any of its Designated Subsidiaries with respect to any Eligible Debt
Offering, each reduction of the Tranche A Loans, Tranche B Loans and
Incremental Facility Loans which are term loans made under this Section
shall reduce such Loans on a pro rata basis and shall be applied to the
remaining scheduled installments of principal due in respect of such
Loans in the direct order of maturity, rather than on a pro rata
basis."
(b) Section 2.5(b)(ii) of the Credit Agreement,
APPLICATION OF PAYMENTS OR REDUCTIONS, is hereby modified and amended by adding
the following sentence at the end of clause (B) thereof:
"The permanent reduction of the Revolving Commitment made on the Third
Amendment Date shall be applied to reduce the remaining scheduled
reductions of the Revolving Commitment as set forth in Section 2.6(a)
hereof in the direct order of maturity."
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6. AMENDMENTS TO SECTION 2.6.
(a) For purposes of clarification only and not in any way
to delay or extend the terms of repayment, or to change the order of application
of repayment of the Revolving Loans or the scheduled reductions in the Revolving
Commitment, Section 2.6(a) of the Credit Agreement, REVOLVING COMMITMENT, is
hereby modified and amended by deleting the introductory paragraph and the table
set forth therein and substituting the following in lieu thereof:
"(a) REVOLVING COMMITMENT. Commencing on September 30, 2003,
and at the end of each calendar quarter thereafter, the Revolving
Commitment shall be automatically and permanently reduced by an amount
equal to the amount (for such quarter and year) as set forth below:
AMOUNT OF REVOLVING ANNUAL AMOUNT OF REVOLVING
COMMITMENT OUTSTANDING COMMITMENT OUTSTANDING
IMMEDIATELY AFTER THE THIRD IMMEDIATELY AFTER THE
AMENDMENT DATE TO BE THIRD AMENDMENT DATE
QUARTERS ENDING REDUCED EACH QUARTER TO BE REDUCED
--------------- -------------------- -------------
September 30, 2003 through $0 $0
December 31, 2003
March 31, 2004 through December $0 $0
31, 2004
March 31, 2005 $0 --
September 30, 2005 $3,125,000 --
December 31, 2005 $21,875,000 $25,000,000
March 31, 2006 through December $21,875,000 $87,500,000
31, 2006
March 31, 2007 through June 30, $43,750,000 $87,500,000
2007
(b) For purposes of clarification only and not in any way
to delay or extend the terms of repayment, or to change the order of application
of repayment of the Tranche A Loans or the scheduled reductions in the Tranche A
Commitment, Section 2.6(b) of the Credit Agreement, TRANCHE A LOANS, is hereby
deleted in its entirety and the following substituted in lieu thereof:
"(b) TRANCHE A LOANS. Commencing on September 30, 2003, and at
the end of each calendar quarter thereafter, the outstanding principal
balance of the Tranche A Loans then outstanding shall be repaid by an
amount equal to the amount (for such quarter and year) set forth below:
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ANNUAL AMOUNT OF
AMOUNT OF TRANCHE A LOANS TRANCHE A LOANS
OUTSTANDING IMMEDIATELY OUTSTANDING IMMEDIATELY
AFTER THE THIRD AMENDMENT AFTER THE THIRD AMENDMENT
QUARTERS ENDING DATE TO BE REDUCED EACH QUARTER DATE TO BE REDUCED
--------------- ------------------------------- ------------------
September 30, 2003 through $0 $0
December 31, 2003
March 31, 2004 through December $0 $0
31, 2004
March 31, 2005 through June 30, $0 --
2005
September , 2005 $22,243,734.12 --
December 31, 2005 $31,168,590.76 $53,412,324.88
March 31, 2006 through December $31,168,590.76 $124,674,363.04
31, 2006
March 31, 2007 $62,337,181.53 ---
June 30, 2007 $61,270,302.55 $123,607,484.06
"Additionally, the Tranche A Loans shall be repaid as may be required
by Section 2.7 hereof. Any unpaid principal and interest of the Tranche
A Loans and any other outstanding Obligations under the Tranche A
Commitment shall be due and payable in full on the Initial Maturity
Date."
(c) For purposes of clarification only and not in any way
to delay or extend the terms of repayment, or to change the order of application
of repayment of the Tranche B Loans, Section 2.6(c) of the Credit Agreement,
TRANCHE B LOANS, is hereby deleted in its entirety and the following substituted
in lieu thereof:
"(c) TRANCHE B LOANS. Commencing on September 30, 2003, and at
the end of each calendar quarter thereafter, the outstanding principal
balance of the Tranche B Loans then outstanding shall be repaid as set
forth below:
AMOUNT OF TRANCHE B LOANS ANNUAL AMOUNT OF TRANCHE B
OUTSTANDING IMMEDIATELY LOANS OUTSTANDING IMMEDIATELY
AFTER THE THIRD AMENDMENT AFTER THE THIRD AMENDMENT
QUARTERS ENDING DATE TO BE REDUCED EACH QUARTER DATE TO BE QUARTER REDUCED
--------------- ------------------------------- --------------------------
September 30, 2003 through $0 $0
December 31, 2003
March 31, 2004 through December $0 $0
31, 2006
March 31, 2007 $0 --
June 30, 2007 $0 --
September 30, 2007 $191,256,649.63 --
December 31, 2007 $214,004,178.37 $405,260,828.00
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"Additionally, the Tranche B Loans shall be repaid as may be required
by Section 2.7 hereof. Any unpaid principal and interest of the Tranche
B Loans and any other outstanding Obligations shall be due and payable
in full on the Final Maturity Date."
7. AMENDMENTS TO SECTION 2.7.
(a) Section 2.7(b) of the Credit Agreement, DISPOSITION
OF ASSETS, is hereby modified and amended by deleting subsection (i) in its
entirety and by substituting the following in lieu thereof:
"(i) If, after the Agreement Date, the Borrower or any of the
Designated Subsidiaries shall sell, transfer or otherwise dispose of
(including, without limitation, by way of condemnation or casualty) (I)
any Cingular Transaction Assets in connection with the Cingular
Transaction, (II) any of the Specified Reduction Assets, (III) all or
any portion of the Network Services Business, or (IV) any other Assets,
or any of the Designated Subsidiaries shall issue minority Equity
Interests therein, with Net Cash Proceeds in excess of $10,000,000 in
the aggregate during the term of this Agreement (other than (A) the
sale of obsolete equipment (other than Towers), (B) the sale of
inventory in the ordinary course of business, (C) the sale, transfer or
other disposition of Assets that are replaced by property of
substantially equivalent value in the ordinary course of business, (D)
the sale, transfer or other disposition of any Equity Interests in any
Unrestricted Subsidiary or Unrestricted Investment, and (E) the lease
of space on Towers in the ordinary course of business), one hundred
percent (100%) of the Net Cash Proceeds (in the case of each of clauses
(I), (II), (III) and (IV)) received by the Borrower or such Designated
Subsidiary from such Sales Transaction shall be applied, on the date of
receipt thereof by the Borrower or such Designated Subsidiary, to
prepay the Loans as set forth in Section 2.7(e) below; PROVIDED,
HOWEVER, that, at the Borrower's election, so long as no Default or
Event of Default then exists or would be caused thereby, up to
$20,000,000 of such Net Cash Proceeds received by the Borrower or any
Designated Subsidiary (other than any Net Cash Proceeds received in
connection with the Cingular Transaction or the sale of any Specified
Reduction Assets or the disposition of all or any portion of the
Network Services Business) in the aggregate during any year may be used
by the Borrower or such Restricted Subsidiary to purchase or construct
one or more Towers or otherwise to invest in capital assets, the
aggregate Purchase Price of which does not exceed such Net Cash
Proceeds (or the sum of such Net Cash Proceeds plus amounts otherwise
available for Permitted Acquisitions), so long as the Borrower or such
Designated Subsidiary shall have (A) entered into a definitive contract
for purchase or construction no later than six (6) months from the date
of such sale or other disposition, and (B) concluded such purchase or
construction within twelve (12) months from the date of such sale or
other disposition."
(b) Section 2.7(c) of the Credit Agreement, DEBT
ISSUANCE, is hereby modified and amended by adding the following sentence at the
end thereof:
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"In addition to the foregoing and without regard to the Borrower
Leverage Ratio requirements contained therein, if, after the Third
Amendment Date, Holdco shall issue any Specified High-Yield Securities,
Holdco shall contribute to the Borrower as New Affiliated Equity, on
the date of Holdco's receipt of the Net Cash Proceeds from any such
issuance, one hundred percent (100%) of such Net Cash Proceeds, and the
Borrower shall thereupon apply such amount to prepay the Loans as set
forth in Section 2.7(e) hereof."
(c) Section 2.7(e) of the Credit Agreement, APPLICATION
OF PAYMENTS, is hereby modified and amended by adding the following sentence at
the end thereof:
"Notwithstanding the foregoing, in the case of (x) the amount of any
prepayment required to be made pursuant to Section 2.7(b) hereof from
the Net Cash Proceeds received by the Borrower and its Designated
Subsidiaries in connection with sale, transfer or other disposition of
any Specified Reduction Assets or (y) the amount of any prepayment
required to be made pursuant to Section 2.7(c) hereof in connection
with the issuance of any Specified High-Yield Securities, the amount of
any such prepayment shall be applied to permanently reduce, on a pro
rata basis, the outstanding principal amount of the Tranche A Loans and
the Tranche B Loans, in each case with the amount allocated to the
Tranche A Loans being applied to reduce the remaining scheduled
installments of principal due under the Tranche A Loans as set forth in
Section 2.6(b) hereof in the direct order of maturity, and the amount
allocated to the Tranche B Loans being applied to reduce the remaining
scheduled installments of principal due under the Tranche B Loans as
set forth in Section 2.6(c) hereof in the direct order of maturity."
8. AMENDMENTS TO SECTION 2.16.
(a) Section 2.16 of the Credit Agreement, INCREMENTAL
FACILITY LOANS, is hereby modified and amended by deleting the last sentence
(beginning "Notwithstanding anything to the contrary...") at the end of
subsection (a) thereof.
(b) Section 2.16 of the Credit Agreement, INCREMENTAL
FACILITY LOANS, is hereby further modified and amended by deleting clause (ii)
of subsection (b) and by substituting the following in lieu thereof:
"(ii) provide revised Projections to the Credit Parties, which shall be
in form and substance reasonably satisfactory to the Lead Arrangers and
which shall demonstrate (A) the Borrower's ability to timely repay such
Incremental Facility Commitment and any Incremental Facility Loans
thereunder and (B) the Borrower's pro forma compliance with the
Financial Covenants and ability to make all payments of interest and
principal when due with respect to the Loans through the Final Maturity
Date (which Projections may show the final maturity of the Loans being
repaid with the proceeds of new borrowings as long as the projected
Borrower Leverage Ratio at the Final Maturity Date is no greater than
1.00 to 1.00)"
9. AMENDMENTS TO SECTION 4.2.
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(a) Section 4.2 of the Credit Agreement, CONDITIONS
PRECEDENT TO EACH ADVANCE, is hereby modified and amended by deleting the
parenthetical from the introductory paragraph and by substituting "(including
the initial Advance hereunder and any Advance of the Swing Loans, but excluding
any Advance the proceeds of which are to reimburse (x) the Swing Loan Lender for
Swing Loans or (y) any Issuing Bank for amounts drawn under a Letter of Credit)"
in lieu thereof.
(b) Section 4.2 of the Credit Agreement, CONDITIONS
PRECEDENT TO EACH ADVANCE, is hereby further modified and amended by deleting
the proviso (beginning "provided, however, during the Amendment Period...") at
the end of clause (a) thereof.
10. AMENDMENT TO SECTION 4.3. Section 4.3 of the Credit Agreement,
CONDITIONS PRECEDENT TO ISSUANCE OF EACH LETTER OF Credit, is hereby modified
and amended by deleting the proviso (beginning "provided, however, during the
Amendment Period...") at the end of clause (a) thereof.
11. AMENDMENTS TO SECTION 5.1.
(a) Section 5.1(c) of the Credit Agreement, EQUITY
INTERESTS, CORPORATE ORGANIZATION AND RELATED MATTERS, is hereby modified and
amended by deleting the second sentence therefrom (beginning "As of the
Agreement Date, the Borrower does not...") and substituting the following in
lieu thereof:
"As of the Third Amendment Date, the Borrower does not have any
Subsidiaries other than the Subsidiaries listed on Schedule 5.1(c)
attached hereto, which Subsidiaries are identified on such schedule as
Restricted Subsidiaries, Unrestricted Subsidiaries and Foreign
Subsidiaries."
(b) Section 5.1(d) of the Credit Agreement, COMPLIANCE
WITH OTHER LOAN DOCUMENTS AND CONTEMPLATED TRANSACTIONS, is hereby modified and
amended by deleting the phrase "including, without limitation, the Holdco Notes
Indentures," from clause (iii) thereof.
(c) Section 5.1(g) of the Credit Agreement, COMPLIANCE
WITH LAW; ABSENCE OF DEFAULT, is hereby modified and amended by deleting the
phrase "including, without limitation, the Holdco Notes Indentures," from clause
(y) set forth in the second sentence thereof (beginning "No event has occurred
or failed to occur...").
(d) Section 5.1(x) of the Credit Agreement, INVESTMENTS,
is hereby modified and amended by deleting the second sentence therefrom
(beginning "SCHEDULE 5.1(X) sets forth...") and substituting the following in
lieu thereof:
"SCHEDULE 5.1(X) sets forth, as of the Third Amendment Date, whether
each Investment identified thereon constitutes a Restricted Investment,
an Unrestricted Investment or a Foreign Investment and the amount that
has been Invested by members of the Restricted Group in each such
Investment as of the Third Amendment Date."
12
(e) Section 5.1(aa) of the Credit Agreement, SBC LEASE
DOCUMENTS; HOLDCO NOTES INDENTURES, is hereby deleted in its entirety and the
following substituted in lieu thereof:
"(aa) SBC LEASE DOCUMENTS; CINGULAR TRANSACTION DOCUMENTS. The
Borrower has provided to the Arrangers correct and complete copies of
the SBC Lease Documents and the Cingular Transaction Documents as such
documents are in effect on the Second Amendment Date. To the best of
the Borrower's knowledge, none of the representations and warranties
made by or with respect to any of Holdco, the Borrower and the
Borrower's Subsidiaries as set forth in any of the SBC Lease Documents
or the Cingular Transaction Documents were incorrect in any material
respect when made or deemed made."
12. AMENDMENT TO SECTION 6.11. Section 6.11 of the Credit
Agreement, INTEREST RATE HEDGING, is hereby modified and amended by adding the
following proviso at the end of the first sentence thereof:
"; PROVIDED, HOWEVER, from and after the Third Amendment Date, so long
as the Borrower Leverage Ratio shall be less than or equal to 4.00 to
1.00, the foregoing requirement that at least fifty percent (50%) of
the aggregate amount of Funded Debt of Holdco, the Borrower and the
Borrower's Subsidiaries outstanding be hedged or on a fixed rate basis
shall not apply"
13. AMENDMENTS TO SECTION 6.15.
(a) Section 6.15 of the Credit Agreement, COVENANTS
REGARDING ADDITIONAL COLLATERAL, is hereby modified and amended by deleting
clause (v) from subsection (a) in its entirety and by substituting the following
in lieu thereof:
"(v) in the case of any new Subsidiary Guarantor holding any
Equity Interests in any Designated Subsidiary or Restricted Investment,
a duly executed supplement to the Subsidiary Pledge Agreement, pursuant
to which such Subsidiary Guarantor shall pledge to the Collateral Agent
all of the Equity Interests held by it, whether now owned or hereafter
acquired, in (A) each of the Subsidiary Guarantors and the Restricted
Investments and (B) each of the Foreign Subsidiaries and the Foreign
Investments (but not to exceed sixty-six percent (66%) of the total
Equity Interests in any such Person);"
(b) Section 6.15 of the Credit Agreement, COVENANTS
REGARDING ADDITIONAL COLLATERAL, is hereby further modified and amended by
deleting (i) the phrase "or any Domestic SpectraSite Mexico Investment" from the
introductory paragraph of subsection (b) thereof, and (ii) the phrase "or
Domestic SpectraSite Mexico Investment" from clause (i) of subsection (b)
thereof.
(c) Section 6.15 of the Credit Agreement, COVENANTS
REGARDING ADDITIONAL COLLATERAL, is hereby modified and amended by deleting the
introductory paragraph from subsection (c) and by substituting the following in
lieu thereof:
13
"(c) Concurrently with (x) the consummation of each
Acquisition by the Borrower (whether directly or indirectly) of any new
Foreign Subsidiary, (y) the formation of any new Foreign Subsidiary, or
(z) the consummation of each Investment by the Borrower (whether
directly or indirectly) in any new Foreign Investment, the Borrower
will, and will cause each of the Subsidiary Guarantors to, provide to
the Collateral Agent the following:"
(d) Section 6.15 of the Credit Agreement, COVENANTS
REGARDING ADDITIONAL COLLATERAL, is hereby modified and amended by deleting
clause (i) from subsection (c) and by substituting the following in lieu
thereof:
"(i) a duly executed amendment to the Borrower Pledge
Agreement or the Subsidiary Pledge Agreement, as applicable, pursuant
to which all of the Equity Interests owned by the Borrower (whether
directly or indirectly) in such new Foreign Subsidiary or such new
Foreign Investment (but not to exceed sixty-six percent (66%) of the
total Equity Interests of any such Person) shall be pledged to the
Collateral Agent as additional Collateral securing the Obligations to
be held by the Collateral Agent in accordance with the terms of the
Borrower Pledge Agreement or the Subsidiary Pledge Agreement, as
applicable, together with all original share certificates representing
such Equity Interests and duly executed certificate powers (or, in the
case of uncertificated Equity Interests, any necessary UCC-1 financing
statement forms);"
(e) Section 6.15 of the Credit Agreement, COVENANTS
REGARDING ADDITIONAL COLLATERAL, is hereby further modified and amended by
deleting the phrase "and, to the extent constituting Designated Subsidiaries
hereunder, any non-wholly owned Domestic SpectraSite Mexico Subsidiaries," from
clause (i) of the subsection (f).
14. AMENDMENT TO SECTION 6.17. Section 6.17 of the Credit
Agreement, COVENANTS REGARDING THE DESIGNATION OF SUBSIDIARIES AND INVESTMENTS,
is hereby modified and amended by deleting subsection (a), PROCEDURE FOR
DESIGNATION, in its entirety and by substituting the following in lieu thereof:
"(a) PROCEDURE FOR DESIGNATION. As of the Agreement Date, the
Borrower shall designate in writing to the Lead Arrangers (i) each of
its direct and indirect Subsidiaries (other than any Foreign
Subsidiaries) as Restricted Subsidiaries or Unrestricted Subsidiaries
for purposes of this Agreement and (ii) each of the Investments (other
than Concourse Communications or any Foreign Investments) made by the
Borrower or any of its Subsidiaries as Restricted Investments or
Unrestricted Investments for purposes of this Agreement. With respect
to each Subsidiary of the Borrower formed or acquired, and each
Investment of the Borrower or any of its Subsidiaries made, after the
Agreement Date, the Borrower shall, promptly after the formation or
Acquisition of such Subsidiary or the making of such Investment,
designate in writing to the Lead Arrangers whether each such Subsidiary
is a Restricted Subsidiary, an Unrestricted Subsidiary or a Foreign
Subsidiary and whether each such Investment is a Restricted Investment,
an Unrestricted Investment or a Foreign Investment. To the extent that
the Borrower shall fail to designate a Subsidiary or an Investment
pursuant to the terms of this Section 6.17(a), within thirty (30) days
of the formation or Acquisition thereof, each such Subsidiary shall
14
be deemed to be a Restricted Subsidiary and each such Investment shall
be deemed to be a Restricted Investment. After the Agreement Date, so
long as no Default or Event of Default then exists or would be caused
thereby, the Borrower may, upon thirty (30) days' (or such shorter
period as may be acceptable to the Administrative Agent) prior written
notice to the Administrative Agent and subject to compliance with the
requirements of this Section 6.17 and Section 6.15 hereof, re-designate
Unrestricted Subsidiaries as Restricted Subsidiaries and Unrestricted
Investments as Restricted Investments. Members of the Restricted Group,
Restricted Investments, Foreign Subsidiaries and Foreign Investments
may not be re-designated as Unrestricted Subsidiaries or Unrestricted
Investments. Notwithstanding anything to the contrary contained herein,
(x) no Unrestricted Subsidiary may be designated or re-designated as a
Restricted Subsidiary if not owned directly by a member of the
Restricted Group and (y) no Unrestricted Investment may be designated
or re-designated as a Restricted Investment if not owned directly by a
member of the Restricted Group."
15. AMENDMENTS TO ARTICLE 7.
(a) Section 7.1 of the Credit Agreement, QUARTERLY
FINANCIAL STATEMENTS AND INFORMATION, is hereby deleted in its entirety and the
following substituted in lieu thereof:
"Section 7.1 QUARTERLY FINANCIAL STATEMENTS AND INFORMATION.
Within forty-five (45) days after the last day of each of the first
three (3) fiscal quarters, and within ninety (90) days after the last
day of the fourth fiscal quarter of each fiscal year of the Borrower,
unaudited balance sheets of (a) Holdco, on a consolidated basis with
its Subsidiaries, and (b) the Borrower, on a consolidated basis with
its Subsidiaries, in each case as at the end of such quarter, and the
related statements of cash flows and statements of operations of such
parties as set forth in clauses (a) and (b) above, and a revenue and
expense statement of the Borrower and its Subsidiaries on a
consolidated basis by Tower Operations and Other Operations, in each
case for such quarter and for the elapsed portion of the year ended
with the last day of such quarter, which, with respect to such
financial statements of (i) Holdco, on a consolidated basis with its
Subsidiaries, and (ii) the Borrower on a consolidated basis with its
Subsidiaries, shall set forth in comparative form such figures as at
the end of, with respect to the balance sheets and statements of cash
flows, the preceding fiscal year end and, with respect to the
statements of operations, as at the end of and for such quarter and the
corresponding quarter during the preceding fiscal year, and against the
figures set forth for such quarter in the Borrower's business plan
provided to the Credit Parties pursuant to Section 7.4(d) hereof, and
shall be certified by a Financial Officer of the Borrower, to be, in
his or her opinion, complete and correct in all material respects and
to present fairly in all material respects, in accordance with GAAP
(subject only to normal year-end adjustments and the absence of
footnotes), the financial position of (A) Holdco, on a consolidated
basis with its Subsidiaries and (B) the Borrower, on a consolidated
basis with its Subsidiaries, as applicable, as at the end of such
period and the results of operations for such period, and for the
elapsed portion of the year ended with the last day of such period."
15
(b) Section 7.2 of the Credit Agreement, ANNUAL FINANCIAL
STATEMENTS AND INFORMATION, is hereby modified and amended by deleting the
proviso (beginning "PROVIDED, HOWEVER, that notwithstanding anything to the
contrary...") at the end of such Section.
(c) Section 7.3 of the Credit Agreement, PERFORMANCE
CERTIFICATES, is hereby modified and amended by (i) deleting the parenthetical
"(including, without limitation, any draft financial statements delivered with
respect to the fiscal quarter ending December 31, 2002)" from the introductory
paragraph thereof, (ii) deleting subsection (b) its entirety and substituting
"(b) setting forth for the Borrower and the Designated Subsidiaries, for each
such fiscal quarter, a summary in substantially the form of Schedule 3 to the
Performance Certificate;" in lieu thereof, and (iii) deleting the last sentence
thereof (beginning "With respect to the Performance Certificate required to be
furnished in connection with the draft financial statements...") in its
entirety.
(d) Section 7.4 of the Credit Agreement, COPIES OF OTHER
REPORTS, is hereby modified and amended by deleting subsection (g) in its
entirety.
(e) Article 7 of the Credit Agreement, INFORMATION
COVENANTS, is hereby further modified and amended by deleting Section 7.6 in its
entirety.
16. AMENDMENTS TO SECTION 8.1.
(a) Section 8.1 of the Credit Agreement, INDEBTEDNESS, is
hereby modified and amended by deleting subsection (g) in its entirety and by
substituting the following in lieu thereof:
"(g) With respect to Holdco, (i) Indebtedness represented by
any Permitted High-Yield Securities which are debt securities, and (ii)
accrual of interest, accrual of dividends, the accretion of accreted
value, the payment of interest in the form of additional Indebtedness
and the payment of dividends in the form of additional shares in
respect of any Permitted High-Yield Securities;"
(b) Section 8.1 of the Credit Agreement, INDEBTEDNESS, is
hereby further modified and amended by deleting subsection (k) therefrom in its
entirety and by substituting the following in lieu thereof:
"(k) Indebtedness of (i) any Foreign Subsidiary (other than
any Canadian Subsidiary) to any wholly owned Foreign Subsidiary (other
than any Canadian Subsidiary), (ii) any Canadian Subsidiary to any
wholly owned Canadian Subsidiary, or (iii) Concourse Communications or
any of its Subsidiaries to Concourse Communications or any of its
wholly owned Subsidiaries; and"
17. AMENDMENT TO SECTION 8.2. Section 8.2 of the Credit Agreement,
INVESTMENTS, is hereby modified and amended by deleting clause (y) in its
entirety and by substituting the following in lieu thereof:
16
"(y) (a) Foreign Subsidiaries (other than Canadian Subsidiaries) may
make Investments in and loans to wholly owned Foreign Subsidiaries
(other than Canadian Subsidiaries), (b) Canadian Subsidiaries may make
Investments in and loans to wholly owned Canadian Subsidiaries, and (c)
Concourse Communications and its Subsidiaries may make Investments in
and loans to Concourse Communications and its wholly owned
Subsidiaries."
18. AMENDMENT TO SECTION 8.4. Section 8.4 of the Credit Agreement,
AMENDMENT AND WAIVER, is hereby modified and amended by deleting clause (c) from
subsection (i) and by substituting "(c) any documents evidencing or relating to
the issuance of any Permitted High-Yield Securities," in lieu thereof.
19. AMENDMENTS TO SECTION 8.5.
(a) Section 8.5 of the Credit Agreement, LIQUIDATION;
MERGER; ACQUISITION OR DISPOSITION OF ASSETS, is hereby modified and amended by
deleting the introductory paragraph of subsection (ii) in its entirety and by
substituting the following in lieu thereof:
"(ii) subject to compliance with the mandatory prepayment
provision of Section 2.7(b), (w) the Borrower and the Designated
Subsidiaries may consummate the Cingular Transaction and the Concourse
Disposition; (x) the Borrower and the Designated Subsidiaries may sell,
transfer or dispose of, in a single transaction or a series of related
transactions which are consummated on or before the date which is two
(2) years after the Third Amendment Date, the Broadcast Business, so
long as the Borrower shall provide to the Arrangers and the Lenders
calculations demonstrating, on a pro forma basis, that (A) the Borrower
Leverage Ratio and (B) the Debt Per Tower Ratio shall be reduced after
giving effect to such disposition and the mandatory permanent
prepayment of the Loans, if any, associated therewith; (y) the Borrower
and the Designated Subsidiaries may sell, lease, abandon, transfer,
trade or otherwise dispose of, in a single transaction or in a series
of related transactions, Assets, at the fair market value thereof and,
with respect to any disposition in which the Purchase Price is equal to
or greater than $10,000,000 (other than an exchange or swap of Assets),
at least seventy-five percent (75%) of the Purchase Price shall be
payable in cash; and (z) Designated Subsidiaries may issue minority
Equity Interests therein, and in connection with any such disposition
or issuance the Collateral Agent shall, upon the request of the
Borrower, release any Liens granted pursuant to any of the Security
Documents with respect to such Assets, subject to the following
conditions:"
(b) Section 8.5 of the Credit Agreement, LIQUIDATION;
MERGER; ACQUISITION OR DISPOSITION OF ASSETS, is hereby further modified and
amended by deleting subsection (iii) in its entirety and substituting the
following in lieu thereof:
"(iii) (A) members of the Restricted Group (other than any of
the Tower Subsidiaries) may (I) make Investments as permitted under
Section 8.2(x)(a) hereof, and (II) transfer Assets amongst themselves,
(B) Foreign Subsidiaries (other than Canadian Subsidiaries) may (I)
make Investments as permitted under Section 8.2(y) hereof and (II) may
transfer Assets amongst themselves, (C) Canadian Subsidiaries may (I)
make
17
Investments as permitted under Section 8.2(y) hereof and (II) may
transfer Assets amongst themselves, and (D) Concourse Communications
and its Subsidiaries may (I) make Investments as permitted under
Section 8.2(y) hereof and (II) may transfer Assets amongst themselves;"
(c) Section 8.5 of the Credit Agreement, LIQUIDATION;
MERGER; ACQUISITION OR DISPOSITION OF ASSETS, is hereby further modified and
amended by deleting subsection (v) in its entirety and by substituting the
following in lieu thereof:
"(v) subject to compliance with Sections 6.9, 6.15 and 6.16
hereof, the Borrower and the Designated Subsidiaries may make the
following Acquisitions and Investments and form Subsidiaries with
respect thereto:
"(A) Acquisitions of (I) Tower Assets (other than Tower
management and rooftop businesses) located in the United States or (II)
Persons organized under the laws of the United States or any state
thereof or the District of Columbia that are engaged primarily in the
business of holding or leasing Tower Assets of such type which are
located in the United States, so long as the aggregate Purchase Price
for all such Acquisitions consummated during the period from and after
the Second Amendment Date through the Final Maturity Date shall not
exceed the sum of (I) $50,000,000, plus (II) the amount of any New
Affiliated Equity to the extent allocated solely to this purpose, plus
(III) the amount of any Additional Acquisition Availability;
"(B) Investments (whether structured as a single Investment or
a series of related Investments) by the Restricted Group in, and
Acquisitions not otherwise permitted under this Section 8.5(v) of, any
member of the Unrestricted Group, Restricted Investments and non-wholly
owned Restricted Subsidiaries in an amount not to exceed, in the
aggregate during the period from and after the Second Amendment Date
through the Final Maturity Date, the sum of (I) $15,000,000, plus (II)
the amount of any New Affiliated Equity to the extent allocated solely
to this purpose; PROVIDED, HOWEVER, that the aggregate amount of any
such Investments made in members of the Unrestricted Group at any time
outstanding shall not exceed the sum of (x) $10,000,000, plus (y) the
amount of any New Affiliated Equity to the extent allocated solely to
this purpose;
"(C) Permitted Canadian Investments;
"(D) the NTA Investment; and
"(E) Acquisitions with respect to which the portion of the
Purchase Price in excess of any monetary limitation set forth in this
Agreement is payable solely in Equity Interests issued by Holdco or the
proceeds of New Affiliated Equity to the extent allocated solely to
this purpose, with the value of such Equity Interests and such New
Affiliated Equity being excluded from such monetary limitations;
"provided that each of the foregoing Acquisitions and Investments shall
be subject to the following conditions:
18
"(x) no Default or Event of Default shall then exist before or
after giving effect to any such Acquisition or Investment;
"(y) each time that the Borrower and the Designated
Subsidiaries shall complete any single Acquisition or Investment or a
series of Acquisitions or Investments (whether related or unrelated)
having an aggregate Purchase Price with respect to all such
Acquisitions and Investments of greater than or equal to $50,000,000
(with the amount of this basket deemed used by the Borrower and the
Designated Subsidiaries being reset to zero (0) following each delivery
of Projections required hereunder), the Borrower shall have delivered
to each of the Credit Parties updated Projections, in form and
substance reasonably satisfactory to the Lead Arrangers assuming
consummation of all Acquisitions and Investments included in such set
of Acquisitions and Investments and demonstrating the Borrower's pro
forma compliance with the Financial Covenants and ability to make all
payments of interest and principal when due with respect to the Loans
through the Final Maturity Date (which Projections may show the final
maturity of the Loans being repaid with the proceeds of new borrowings
as long as the projected Borrower Leverage Ratio at the Final Maturity
Date is no greater than 1.00 to 1.00), after giving effect to such
Acquisition or Investment or series of Acquisitions or Investments, as
applicable, and any Indebtedness incurred in connection therewith; and
"(z) with respect to any Acquisition structured as an exchange
or swap of Tower Assets, the cash outlay by the Borrower or the
applicable Designated Subsidiary for such Acquisition must be within
the dollar limitations set forth with respect to such Acquisition in
this Section 8.5(v) and the Borrower shall provide to the Arrangers and
the Lenders revised Projections assuming consummation of such
Acquisition and demonstrating pro forma compliance with the Financial
Covenants after giving effect to such Acquisition and any Indebtedness
incurred in connection therewith;"
(d) Section 8.5 of the Credit Agreement, LIQUIDATION;
MERGER; ACQUISITION OR DISPOSITION OF ASSETS, is hereby further modified and
amended by deleting subsection (x) in its entirety and by substituting the
following in lieu thereof:
"(x) subject to compliance with Sections 6.9 and 6.15 hereof,
the Borrower and the Designed Subsidiaries may form Subsidiaries (other
than BTS Transaction Vehicle Subsidiaries (except as set forth in
Section 8.5(viii) above))."
20. AMENDMENT TO SECTION 8.6. Section 8.6 of the Credit Agreement,
LIMITATION ON GUARANTIES, is hereby modified and amended by deleting clause (e)
and substituting "(e) a guaranty by Holdco permitted under any documents
evidencing or relating to the issuance of any Permitted High-Yield Securities
issued by Holdco".
21. AMENDMENT TO SECTION 8.7. Section 8.7 of the Credit Agreement,
RESTRICTED PAYMENTS AND PURCHASES, is hereby deleted in its entirety and the
following substituted in lieu thereof:
"Section 8.7 RESTRICTED PAYMENTS AND PURCHASES. The Borrower
shall not, and shall cause each of the Designated Subsidiaries not to,
directly or indirectly declare or
19
make any Restricted Payment or Restricted Purchase, except that, so
long as no Default or Event of Default then exists or would result
therefrom, any of the Designated Subsidiaries may make pro rata
distributions to holders of Equity Interests in such Designated
Subsidiaries, and the Borrower may (a) transfer to Holdco all or a
portion of the Equity Interests (or dividend payments made in respect
of the Equity Interests) held directly or indirectly by the Borrower in
each of the Unrestricted Subsidiaries or the Unrestricted Investments
to the extent that the aggregate amount of Investments made by the
Borrower and the Designated Subsidiaries in all such Unrestricted
Subsidiaries and Unrestricted Investments shall not exceed $10,000,000
at any time during the term of this Agreement; (b) make Restricted
Payments to Holdco to enable Holdco to make the following payments when
due: (i) dividend or interest payments, as applicable, on Permitted
High-Yield Securities issued after the Third Amendment Date in
connection with an Eligible Debt Offering or an Eligible Equity
Offering, in each case following expiration of any required
payment-in-kind period applicable thereto; (ii) to the extent that such
payments are required in the ordinary course of business and relate
directly to the Borrower or any of the Designated Subsidiaries, or to
services provided for or on behalf of the Borrower or any of the
Designated Subsidiaries, payments, in each case that are required to be
paid in cash, when due of (A) corporate franchise fees and taxes
actually owed by Holdco, (B) legal and accounting fees and expenses
actually incurred by Holdco, (C) costs incurred to comply with Holdco's
reporting obligations under federal or state laws, including, without
limitation, reports filed with respect to the Securities Act, the
Exchange Act or the respective rules and regulations promulgated
thereunder and (D) other customary corporate overhead expenses; and
(iii) payments to repurchase Equity Interests in Holdco owned by
employees, officers and directors of Holdco upon their death,
disability or termination of employment or service, in an aggregate
amount not to exceed $10,000,000 during any year or $15,000,000 during
the term of this Agreement; (c) make dividend payments to holders of
Permitted High-Yield Securities of the Borrower following expiration of
any required payment-in-kind period applicable thereto; and (d) make
Restricted Payments to Holdco to enable Holdco to repurchase fractional
shares of the common Equity Interests of Holdco resulting from the
consummation of any reverse stock split effected by Holdco in aggregate
amount not to exceed $400,000 during the term of this Agreement."
22. AMENDMENTS TO ARTICLE 9.
(a) Section 9.1 of the Credit Agreement, BORROWER
LEVERAGE RATIO, is hereby deleted in its entirety and the following substituted
in lieu thereof:
"The Borrower shall not permit as of the end of any fiscal
quarter ended during the term of this Agreement, or as of the date of
any Advance under this Agreement, the Borrower Leverage Ratio (if
applicable, after giving effect to such Advance) to exceed the
applicable ratio for such date during the periods as set forth below:
20
"QUARTERS ENDING: RATIO:
--------------- -----
Agreement Date through June 30, 2002 6.00 to 1.00
July 1, 2002 through December 31, 2002 5.75 to 1.00
January 1, 2003 through June 30, 2003 5.50 to 1.00
July 1, 2003 through September 30, 2003 5.25 to 1.00
October 1, 2003 through June 29, 2004 5.00 to 1.00
June 30, 2004 through September 29, 2004 4.75 to 1.00
September 30, 2004 through December 30, 2004 4.50 to 1.00
December 31, 2004 through March 30, 2005 4.25 to 1.00
March 31, 2005 through June 29, 2005 4.00 to 1.00
June 30, 2005 through September 29, 2005 3.75 to 1.00
September 30, 2005 and thereafter 3.50 to 1.00"
(b) AMENDMENT TO SECTION 9.2. Section 9.2 of the Credit
Agreement, BORROWER INTEREST COVERAGE RATIO, is hereby modified and amended by
(i) deleting the phrase "After expiration of the Amendment Period, the" at the
beginning of such Section and substituting "The" in lieu thereof, and (ii) by
deleting the sentence "The Borrower Interest Coverage Ratio will not be tested
during the Amendment Period." from the end thereof.
(c) AMENDMENT TO SECTION 9.3. Section 9.3 of the Credit
Agreement, TOTAL INTEREST COVERAGE RATIO, is hereby modified and amended by (i)
deleting the phrase "(a) After expiration of the Amendment Period, the" from
such Section and substituting "The" in lieu thereof and (ii) by deleting
subsection (b) in its entirety.
(d) AMENDMENT TO SECTION 9.4. Section 9.4 of the Credit
Agreement, FIXED CHARGE COVERAGE RATIO, is hereby modified and amended by (i)
deleting the phrase "(a) After expiration of the Amendment Period, the" and
substituting "The" in lieu thereof and (ii) by deleting subsection (b) in its
entirety.
23. AMENDMENTS TO ARTICLE 10.
(a) Section 10.1 of the Credit Agreement, EVENTS OF
DEFAULT, is hereby modified and amended by deleting the phrase "any of the
Holdco Notes Indentures or" from subsection (m) thereof.
(b) Section 10.1 of the Credit Agreement, EVENTS OF
DEFAULT, is hereby further modified and amended by deleting the concluding
paragraph at the end thereof (beginning "Notwithstanding anything to the
contrary contained in the foregoing...").
24. AMENDMENTS TO EXHIBITS AND SCHEDULES.
(a) Exhibit I to the Credit Agreement, FORM OF
PERFORMANCE CERTIFICATE, is hereby deleted in its entirety and EXHIBIT I
attached hereto is substituted in lieu thereof.
21
(b) Schedule 5.1(c) to the Credit Agreement,
CAPITALIZATION, is hereby deleted in its entirety and SCHEDULE 5.1(C) attached
hereto is substituted in lieu thereof.
(c) Schedule 5.1(x) to the Credit Agreement, INVESTMENTS,
is hereby deleted in its entirety and SCHEDULE 5.1(X) attached hereto is
substituted in lieu thereof.
25. REDUCTION OF REVOLVING COMMITMENT. The Borrower has requested,
and the Administrative Agent and the Credit Parties have agreed, to a voluntary
permanent reduction of the Revolving Commitment in the aggregate amount of
$100,000,000 to be effective as of the Third Amendment Date. This reduction of
the Revolving Commitment is reflected in the amendments to the Credit Agreement
set forth above. The Borrower, the Administrative Agent and the Credit Parties
hereby agree that (a) the Revolving Commitment shall be permanently reduced to
$200,000,000 as of the Third Amendment Date and (b) such reduction shall be
applied to reduce the remaining scheduled installments of the Revolving Loans as
set forth in Section 2.5 of the Credit Agreement (after giving effect to this
Amendment).
26. NO OTHER AMENDMENTS. Except for the amendments, releases,
authorizations and waivers set forth above, the text of the Credit Agreement and
the other Loan Documents shall remain unchanged and in full force and effect,
and the Administrative Agent and the Credit Parties hereby reserve the right to
require strict compliance with the terms of the Credit Agreement and the other
Loan Documents in the future.
27. AMENDMENT FEE. The Borrower hereby agrees to pay, upon the
Effective Date (as defined in Section 28 below), to each Lender that delivers
its consent to this Amendment on or before 5:00 p.m. (Eastern Daylight Time) on
May 8, 2003, an amendment fee (the "Amendment Fee") in the amount of 12.5 basis
points on the outstanding principal amount of such Lender's Tranche B Loans as
of the Effective Date. The Amendment Fee shall be fully earned when due and
non-refundable when paid.
28. CONDITIONS TO EFFECTIVENESS. This Amendment will be effective
as of the date first written above (the "Effective Date"), subject to the
occurrence of each of the following on or before such date:
(a) The Administrative Agent shall have received a
counterpart hereof duly executed by the Borrower and Holdco, and by the Majority
Lenders, or the Majority Pro Rata Lenders and the Majority Tranche B Lenders, as
applicable.
(b) The Administrative Agent shall have received a
reaffirmation and consent agreement, in form and substance satisfactory to the
Administrative Agent and its counsel, duly executed by each of the Subsidiary
Guarantors.
(c) The Administrative Agent shall have received
irrevocable written notice from the Borrower electing to permanently reduce the
Revolving Commitment by $100,000,000.
(d) All of the representations and warranties of Holdco
and the Borrower set forth in the Credit Agreement and this Amendment, other
than those that are expressly made as of a specific date, shall be true and
correct in all material respects with the same effect as though
22
such representations and warranties had been made on and as of the Effective
Date as though made on and as of such date.
(e) The Credit Parties shall have received payment of all
fees and expenses (including, without limitation, the Amendment Fee and legal
fees and expenses) due and payable on the Effective Date in respect of the
Credit Agreement, this Amendment and the transactions contemplated hereby and
thereby.
(f) The Administrative Agent shall have received such
other information, documents, instruments or approvals as the Administrative
Agent or its counsel may reasonably require.
29. REPRESENTATIONS AND WARRANTIES. Each of the Borrower and
Holdco, for itself and on behalf of each of its Subsidiaries, agrees, represents
and warrants in favor of the Administrative Agent and the Credit Parties that:
(a) This Amendment has been executed and delivered by
duly authorized representatives of the Borrower and Holdco, and the Credit
Agreement, as modified and amended by this Amendment, constitutes a legal, valid
and binding obligation of the Borrower and Holdco and is enforceable against the
Borrower and Holdco in accordance with its terms, except as enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and by the application of general equitable
principles;
(b) Each representation or warranty of Holdco, the
Borrower and the Designated Subsidiaries set forth in the Credit Agreement is
hereby restated and reaffirmed as true and correct in all material respects on
and as of the date of this Amendment, and after giving effect to this Amendment,
as if such representation or warranty were made on and as of the date of, and
after giving effect to, this Amendment (except to the extent that any such
representation or warranty expressly relates to a prior specific date or
period);
(c) No Default or Event of Default with respect to the
Borrower or Holdco has occurred and is continuing; and
(d) As of the date hereof, (i) the property of the
Borrower, at a fair valuation on a going concern basis, will exceed its debt;
(ii) the capital of the Borrower will not be unreasonably small to conduct its
business; and (iii) the Borrower will not have incurred debts, or have intended
to incur debts, beyond its ability to pay such debts as they mature.
30. RELEASE. As further consideration to induce the Lenders to
execute, deliver and perform this Amendment, each of the Borrower (for itself
and each of its Subsidiaries) represents and warrants that there are no claims,
causes of action, suits, debts, obligations, liabilities, demands of any kind,
character or nature whatsoever, fixed or contingent, which the Borrower, any
Subsidiary of the Borrower, or Holdco may have, or claim to have, against the
Credit Parties or any of them, with respect to the subject matter hereof, the
Loan Documents or matters relating thereto, and each of the Borrower (for itself
and each of its Subsidiaries) hereby releases, acquits and forever discharges
the Credit Parties and each of them, and their respective agents, employees,
officers, directors, servants, representatives, attorneys, affiliates,
successors and
23
assigns (collectively, the "RELEASED PARTIES") from any and all liabilities,
claims, suits, debts, causes of action and the like of any kind, character or
nature whatsoever, known or unknown, fixed or contingent that the Borrower, any
Subsidiary of the Borrower, or Holdco may have, or claim to have, against each
of the such Released Parties with respect to the subject matter hereof, the Loan
Documents or matters relating thereto from the beginning of time until and
through the dates of execution and delivery of this Amendment.
31. EFFECT ON THE CREDIT AGREEMENT. Except as specifically
provided herein, the Credit Agreement shall remain in full force and effect, and
is hereby ratified, reaffirmed and confirmed. This Amendment shall be deemed to
be a Loan Document for all purposes.
32. COUNTERPARTS. This Amendment may be executed in any number of
separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
33. DELIVERY OF LENDER ADDENDA. Each Credit Party shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum, substantially in the form of Annex I attached hereto, duly executed by
such Credit Party.
34. LAW OF CONTRACT. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
BORROWER: SPECTRASITE COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HOLDCO: SPECTRASITE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ADMINISTRATIVE
AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Director, CIBC World
Markets Corp., as Agent
AS LEAD ARRANGER
AND ARRANGER: CIBC WORLD MARKETS CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Director
AS LEAD ARRANGER,
ARRANGER AND
SYNDICATION AGENT: CREDIT SUISSE FIRST BOSTON
By: /s/ Sovonna Day-▇▇▇▇▇
-------------------------------------
Name: SoVonna Day-▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Associate
AS ARRANGER AND
DOCUMENTATION
AGENT: BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Director
AS ARRANGER AND
DOCUMENTATION
AGENT: TD SECURITIES (USA) INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director