EXHIBIT 10.2
AMENDED AND RESTATED LOAN AGREEMENT
by and among
CROWN COMMUNICATION INC. and
CROWN CASTLE INTERNATIONAL CORP. DE PUERTO RICO,
as the Borrowers,
KEY CORPORATE CAPITAL INC.,
as Administrative Agent and Documentation Agent,
PNC BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
and
THE FINANCIAL INSTITUTIONS LISTED HEREIN
AS OF JULY 10, 1998
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS............................................ 2
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1.1 Definitions................................................. 2
1.2 Other Terms................................................. 20
1.3 Accounting Terms; Income Taxes.............................. 20
SECTION 2. THE LOANS.............................................. 20
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2.1 The Reducing Commitment and the Reducing Loans.............. 20
2.2 Making and Conversion/Continuation of the Loans............. 27
2.3 The Notes................................................... 28
2.4 Fees........................................................ 28
2.5 Prepayment.................................................. 29
2.6 Reserves or Deposit Requirements, Etc....................... 31
2.7 Tax Law, Increased Costs, Etc............................... 32
2.8 Eurodollar Deposits Unavailable or Interest
Rate Unascertainable...................................... 32
2.9 Changes in Law Rendering LIBOR Loans Unlawful............... 32
2.10 Funding..................................................... 33
2.11 Indemnity................................................... 33
2.12 Capital Adequacy............................................ 33
2.13 Taxes 34
SECTION 3. INTEREST; PAYMENTS..................................... 35
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3.1 Interest.................................................... 35
3.2 Manner of Payments.......................................... 36
SECTION 4. CLOSING................................................ 37
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS........ 38
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5.1 Organization and Powers..................................... 38
5.2 Authorization............................................... 38
5.3 Financial Statements........................................ 39
5.4 Projections................................................. 39
5.5 Capitalization of Holdco and of the Borrowers............... 39
5.6 Subsidiaries................................................ 40
5.7 Title to Properties; Patents, Trademarks, Etc............... 40
5.8 Litigation; Proceedings..................................... 40
5.9 Taxes....................................................... 41
5.10 Absence of Conflicts........................................ 41
5.11 Indebtedness................................................ 42
5.12 Compliance.................................................. 42
5.13 Statements Not Misleading................................... 42
5.14 Consents or Approvals....................................... 43
5.15 Material Contracts and Commitments.......................... 43
5.16 Employee Benefit Plans...................................... 43
5.17 Licenses.................................................... 44
5.18 Material Restrictions....................................... 44
5.19 Investment Company Act...................................... 45
5.20 Absence of Material Adverse Effect.......................... 45
5.21 Defaults.................................................... 45
5.22 Real Property............................................... 45
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5.23 Securities Laws............................................. 45
5.24 Insurance................................................... 45
5.25 Labor Disputes.............................................. 46
5.26 Environmental Compliance.................................... 46
5.27 Solvency.................................................... 49
5.28 Indenture and Offering Memorandum........................... 49
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BANKS....... 49
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6.1 Compliance.................................................. 50
6.2 Security Agreements......................................... 50
6.3 Pledge Agreements........................................... 51
6.4 Real Property Matters....................................... 52
6.5 Financing Statements........................................ 55
6.6 Guaranties.................................................. 55
6.7 Holdco Subordination Agreement.............................. 55
6.8 Consummation of Holdco Financing and Reorganization......... 55
6.9 No Indebtedness............................................. 56
6.10 Opinion of Counsel.......................................... 56
6.11 Insurance Certificates...................................... 56
6.12 Financial Information....................................... 56
6.13 Borrowing Request and Statement of Application of Proceeds.. 56
6.14 Corporate Documents......................................... 57
6.15 Lien Searches, Consents and Releases of Liens............... 57
6.16 No Order, Judgment, Decree or Litigation.................... 58
6.17 No Material Adverse Effect.................................. 58
6.18 Fee Letter; Fees and Expenses............................... 58
6.19 Legal Approval.............................................. 58
6.20 Other Documents............................................. 59
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWERS................. 59
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7.1 Use of Proceeds............................................. 59
7.2 Continued Existence; Compliance with Law.................... 59
7.3 Insurance................................................... 59
7.4 Obligations and Taxes....................................... 60
7.5 Financial Statements and Reports............................ 61
7.6 Notices..................................................... 63
7.7 Maintenance of Property..................................... 64
7.8 Information and Inspection.................................. 64
7.9 Maintenance of Liens........................................ 65
7.10 Title To Property........................................... 65
7.11 Environmental Compliance and Indemnity...................... 65
7.12 Appraisals.................................................. 67
7.13 Rate Hedging Obligations.................................... 67
7.14 Maintenance of Separate Identity............................ 67
SECTION 8. NEGATIVE COVENANTS OF THE BORROWERS.................... 68
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8.1 Indebtedness................................................ 68
8.2 Liens....................................................... 68
8.3 Guaranties.................................................. 68
8.4 Rental and Conditional Sale Obligations..................... 69
8.5 Real Property Interests..................................... 69
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8.6 Capitalized Lease Obligations............................... 69
8.7 Capital Expenditures........................................ 69
8.8 Notes, Accounts Receivable and Claims....................... 70
8.9 Capital Distributions....................................... 70
8.10 Disposal of Property; Mergers; Acquisitions; Reorganizations
Reorganizations........................................... 71
8.11 Investments................................................. 75
8.12 Amendment of Governing Documents............................ 76
8.13 Financial Covenants......................................... 76
8.14 Management Agreements and Fees.............................. 77
8.15 Fiscal Year................................................. 77
8.16 ERISA....................................................... 78
8.17 Affiliates.................................................. 78
8.18 Change of Name or Corporate Structure....................... 78
8.19 Amendments or Waivers....................................... 78
8.20 Issuance or Transfer of Capital Stock....................... 78
8.21 Change in Business.......................................... 78
8.22 Regulation U................................................ 78
8.23 Subordinated Debt........................................... 79
SECTION 9. EVENTS OF DEFAULT...................................... 79
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9.1 Non-Payment................................................. 79
9.2 Failure of Performance in Respect of Other Obligations...... 79
9.3 Breach of Warranty.......................................... 80
9.4 Cross-Defaults.............................................. 80
9.5 Assignment for Benefit of Creditors......................... 80
9.6 Bankruptcy.................................................. 80
9.7 Appointment of Receiver; Liquidation........................ 81
9.8 Judgments................................................... 81
9.9 Impairment of Collateral; Invalidation of any
Loan Document............................................. 81
9.10 Termination of License or Agreements........................ 82
9.11 Change of Control........................................... 82
9.12 Default under Collateral Document........................... 82
9.13 Condemnation................................................ 82
9.14 Material Adverse Effect..................................... 83
SECTION 10. REMEDIES............................................... 83
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10.1 Optional Defaults.......................................... 83
10.2 Automatic Defaults......................................... 83
10.3 Performance by the Banks................................... 84
10.4 Other Remedies............................................. 84
10.5 Enforcement and Waiver by the Banks........................ 84
SECTION 11. THE AGENTS............................................. 84
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11.1 Appointment................................................ 84
11.2 Powers..................................................... 85
11.3 General Immunity........................................... 85
11.4 Action on Instructions of the Banks........................ 86
11.5 Employment of Administrative Agents and Counsel............ 86
11.6 Reliance on Documents; Counsel............................. 86
11.7 Administrative Agent's Reimbursement and Indemnification... 86
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11.8 Rights as a Bank........................................... 87
11.9 Bank Credit Decision....................................... 87
11.10 Successor Administrative Agent............................. 88
11.11 Ratable Sharing............................................ 88
11.12 Actions by the Administrative Agent and the Banks.......... 89
SECTION 12. MISCELLANEOUS.......................................... 89
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12.1 Construction............................................... 89
12.2 Further Assurance.......................................... 90
12.3 Expenses of the Administrative Agent,
Syndication Agent and the Banks; Indemnification.......... 90
12.4 Notices.................................................... 91
12.5 Waiver and Release by the Borrowers........................ 92
12.6 Right of Set Off........................................... 93
12.7 Successors and Assigns; Participations..................... 93
12.8 APPLICABLE LAW............................................. 95
12.9 ENFORCEMENT................................................ 96
12.10 JURY TRIAL WAIVER.......................................... 96
12.11 Binding Effect and Entire Agreement; No Oral Agreements.... 97
12.12 Counterparts............................................... 97
12.13 Survival of Agreements..................................... 97
12.14 Modification............................................... 97
12.15 Separability............................................... 98
12.16 Section Headings........................................... 99
12.17 Termination................................................ 99
12.18 Interest Limitation........................................ 99
12.19 DTPA Waiver................................................100
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AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
THIS AMENDED AND RESTATED LOAN AGREEMENT is made and entered into as
of June __, 1998, by and among CROWN COMMUNICATION INC., a Delaware corporation
("CCI"), CROWN CASTLE INTERNATIONAL CORP. DE PUERTO RICO, a Puerto Rico
corporation ("CCI-PR" and, together with CCI, collectively, the "Borrowers" and
individually, a "Borrower"), the FINANCIAL INSTITUTIONS listed on the signature
pages hereof, KEY CORPORATE CAPITAL INC., as Administrative Agent and
Documentation Agent (the "Administrative Agent"), and PNC BANK, NATIONAL
ASSOCIATION, as Syndication Agent (the "Syndication Agent").
R E C I T A L S:
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Castle Tower Corporation, CCI-PR, the Administrative Agent, the
Syndication Agent and the Banks entered into a Loan Agreement dated as of April
26, 1995, as amended by the First Amendment to Loan Agreement dated as of June
26, 1996, the Second Amendment to Loan Agreement dated as of January 17, 1997,
the Third Amendment to Loan Agreement dated as of April 3, 1997, the Fourth
Amendment to Loan Agreement dated as of October 31, 1997, and the Fifth
Amendment to Loan Agreement dated as of November 24, 1997 (as so amended, the
"Original Agreement"), pursuant to which the Banks agreed to make available to
Castle Tower Corporation and CCI-PR loans of up to $100,000,000. Castle Tower
Corporation has merged with and into CCI, and as a result of such merger, by
operation of law, CCI has assumed all of the obligations of Castle Tower
Corporation under the Original Agreement and the notes issued pursuant thereto.
The Borrowers have requested that the Original Agreement be amended and restated
to incorporate in one document all of the amendments to the Original Agreement,
to reflect the merger of Castle Tower Corporation into CCI and to make certain
other changes. The Agents and the Banks, subject to the terms and conditions
hereof, have agreed to such request.
A G R E E M E N T S:
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Accordingly, the Borrowers, the Banks and the Agents agree as follows:
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SECTION 1. DEFINITIONS.
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1.1 Definitions. All terms typed with leading capitals are terms
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defined in this Agreement. For the purposes of this Agreement, the terms
defined in this Section 1 shall have the meanings set out below.
"Affiliate" means, with respect to any Person, (a) any other Person
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which is directly or indirectly controlled by, under common control with or
controlling the first specified Person; (b) a Person owning beneficially or
controlling 5% or more of the equity interest in such other Person; (c) any
officer, director or partner of such other Person; or (d) any spouse or relative
(by blood, adoption or marriage) of any such individual Person. The term
"control" means possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person whether through
the ownership of voting securities or partnership interests, by contract or
otherwise.
"Agents" means collectively the Administrative Agent and the
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Syndication Agent.
"Applicable Margin" means, as of any date of determination, the
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percentage determined from the following table based upon the ratio of Total
Debt as of such date to Operating Cash Flow for the four quarter period then
ended or then most recently ended:
Ratio of Total Debt Applicable Applicable
to Operating Cash Margin for Margin for
Flow: Base Rate Loans: LIBOR Loans:
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Greater than 6.5:1.0 1.500% 3.250%
Greater than 6.0:1.0 1.250%
but less than or
equal to 6.5:1.0
2.750%Greater than 1.000% 2.250%
5.5:1.0 but less
than or equal to
6.0:1.0
Greater than 5.0:1.0 0.875% 2.125%
but less than or
equal to 5.5:1.0
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Greater than 4.5:1.0 0.625% 1.875%
but less than or
equal to 5.0:1.0
Greater than 4.0:1.0 0.375% 1.625%
but less than or
equal to 4.5:1.0
Greater than 3.5:1.0 0.000% 1.250%
but less than or
equal to 4.0:1.0
Less than or equal 0.000% 1.000%
to 3.5:1.0
"Applicable Percentage" means, as of any date of determination, the
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percentage determined from the following table based upon the Leverage Ratio:
Leverage Ratio: Applicable Percentage:
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Greater than or equal to 50%
5.0:1.0
Less than 5.0:1.0 0%;
provided, however, that the Applicable Percentage shall be 100% if at the time
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of determination a Possible Default or Event of Default exists.
"Asset Sale" means the sale by either Borrower or any of their
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Subsidiaries to any Person of any assets of such Borrower or Subsidiary, other
than (a) the sale of assets with an aggregate value which does not exceed in any
fiscal year an amount equal to $500,000 and (b) the sale in the ordinary course
of business of assets held for resale in the ordinary course of business or the
trade in or replacement of assets in the ordinary course of business or the
disposition of any asset which, in the good faith exercise of its business
judgment, such Borrower or Subsidiary determines is no longer useful in the
conduct of its business.
"Banking Day" means a day on which the main office of the
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Administrative Agent is open to the public for the transaction of business, and
on which, with respect to any LIBOR Loan, banks are open for business in London,
England, and quoting deposit rates for dollar deposits.
"Banks" means the financial institutions listed on the signature pages
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of this Agreement and their respective
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successors and assigns; the term "Banks" shall include the Issuing Bank.
"Base Rate" means the rate of interest determined and publicly
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announced by the Administrative Agent from time to time as its prime rate at its
main office in Cleveland, Ohio. The prime rate functions as a reference rate
index, and the Administrative Agent may charge other borrowers more or less than
the prime rate. The Base Rate will automatically change as and when such prime
rate changes.
"Base Rate Loans" means those Reducing Loans described in Section 2.1
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on which the Borrowers shall pay interest at a rate based on the Base Rate.
"Benefit Arrangement" means any pension, profit-sharing, thrift or
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other retirement plan, medical, hospitalization, vision, dental, life,
disability or other insurance or benefit plan, deferred compensation, stock
ownership, stock purchase, stock option, performance share, bonus, fringe
benefit, savings or other incentive plan, severance plan or other similar plan,
agreement, arrangement or understanding, to which either Borrower or any member
of the Controlled Group is, or in the preceding six years was, required to
contribute on behalf of its employees or directors, whether or not such plan,
agreement, arrangement or understanding is subject to ERISA.
"Borrowers Security Agreement" has the meaning assigned to it in
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Section 6.2(a).
"Capital Distribution" means any dividend, payment or distribution
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made, liability incurred or other consideration given for the purchase,
acquisition, redemption or retirement of any capital stock, partnership interest
or other equity interest of a Person or as a dividend, return of capital or
other payment or distribution of any kind to a stockholder or partner of such
Person (other than any stock dividend or stock split or similar distribution
payable only in capital stock of such Person) in respect of such Person's
capital stock or partnership interests.
"Capital Expenditures" means any payments which are made by a Person
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for or in connection with the rental, lease, purchase, construction or use of
any real or personal property the value or cost of which, under GAAP, should be
capitalized and appear on such Person's balance sheet in the category of
property, plant or equipment, without regard to the manner in which such
payments or the instrument pursuant to which they are made are characterized by
such Person or
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any other Person; provided, however, that neither (a) the capitalized portion of
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the purchase price payable pursuant to a Qualified Acquisition nor (b) the
capitalized portion of expenditures for the construction or improvement of
communications tower facilities shall constitute a Capital Expenditure.
"Capitalized Lease Obligations" means, as to any Person, the
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obligations of such Person to pay rent or other amounts under leases of, or
other agreements conveying the right to use real or personal property, which
obligations are required to be classified and accounted for as capital leases on
a balance sheet of such Person, prepared in accordance with GAAP.
"CCI Pledge Agreement" has the meaning assigned to it in Section
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6.3(b).
"Closing" and "Closing Date" have the meanings assigned to them in
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Section 4.
"Code" means the Internal Revenue Code of 1986, as amended, or any
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successor statute thereto.
"Collateral Documents" means all promissory notes, letters of credit,
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agreements, assignments, guaranties, mortgages, financing statements,
certificates and other agreements, instruments and documents which are required
by this Agreement or any other Collateral Document to be executed or delivered
by or on behalf of either Borrower, any of their Subsidiaries, Holdco or any
other Person.
"Controlled Group" means a controlled group of entities which are
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treated as a single employer under Sections 414(b), 414(c) or 414(m) of the Code
of which either Borrower or any of their Subsidiaries is a part.
"Crown Mobile" means Crown Mobile Systems, Inc., a Pennsylvania
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corporation which is a wholly owned Subsidiary of CCI.
"Crown Network" means Crown Network Systems, Inc., a Pennsylvania
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corporation which is a wholly owned Subsidiary of CCI.
"Debt Service" means, for any period, the sum of (a) all scheduled
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Reducing Commitment reductions under Section 2.1(b) during such period, (b) all
principal payments required to be made by the Borrowers and their Subsidiaries
on Total Debt, other than the Loans, but including, without limitation, Seller
Debt and Capitalized
6
Lease Obligations, during such period, and (c) all cash interest payments on,
and fees in respect of, Total Debt, and all fees in respect of the Letters of
Credit, required to be made by the Borrowers and their Subsidiaries during such
period.
"Default Interest Rate" means a rate of interest equal to the sum of
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the Base Rate plus 3.5% per annum.
"Discount Rate" means, with respect to a prepayment or conversion of a
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LIBOR Loan on a date other than the last day of its Interest Period, a rate
equal to the interest rate (as of the date of prepayment or conversion) on
United States Treasury obligations in a like amount as such Loan and with a
maturity approximately equal to the period between the prepayment or conversion
date and the last day of the Interest Period of such Loan, as determined by the
Administrative Agent.
"Environmental Claim" means, with respect to any Person, any written
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or oral notice, claim, demand, request for information, citation, summons, order
or other communication (each, a "claim") by any other Person alleging or
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asserting the liability of the recipient of such claim for investigatory costs,
cleanup costs, governmental response costs, damages to natural resources or
other property or health, personal injuries, fines or penalties arising out of,
based on or resulting from (a) the presence or Release of any Hazardous Material
at or from any location, whether or not owned by such Person, or (b) any
violation, or alleged violation, of any Environmental Law. The term
"Environmental Claim" shall include, without limitation, any claim by any
governmental authority for enforcement, cleanup, removal, response, remedial or
other actions or damages pursuant to any applicable Environmental Law, and any
claim by any third party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the presence or
Release of Hazardous Materials or arising from alleged injury or threat of
injury to health, safety or the environment.
"Environmental Laws" means all provisions of law, statutes,
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ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by the government
of the United States of America or by any state or municipality thereof or by
any court, agency, instrumentality, regulatory authority or commission of any of
the foregoing regulating, relating to or imposing liability or a standard of
conduct concerning the environment or regulating the emission, release or
discharge of substances into the environment.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended, and the regulations thereunder.
"Event of Default" means any of the events specified in Section 9.
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"Excess Cash Flow" means, as of any date of determination, Operating
----------------
Cash Flow for the four quarter period then most recently ended less the sum
(without duplication) of (a) all Debt Service incurred by the Borrowers and
their Subsidiaries in such period, (b) income taxes incurred by the Borrowers
and their Subsidiaries in such period, (c) Capital Expenditures, excluding
proceeds of casualty insurance policies reasonably and promptly applied to
replace insured assets, paid in cash by the Borrowers and their Subsidiaries
during such fiscal year to the extent permitted pursuant to Section 8.7, (d)
Capitalized Lease Obligation payments made by the Borrowers and their
Subsidiaries during such period to the extent permitted pursuant to Section 8.6,
(e) Capital Distributions made by CCI to the extent permitted pursuant to
Section 8.9(a)(ii) or (iii), and (f) the excess, if any, in Working Capital of
the Borrowers and their Subsidiaries as of the end of such fiscal year over the
Working Capital of the Borrowers and their Subsidiaries as of the end of the
prior fiscal year.
"Extraordinary Items" means, to the extent deducted in calculating Net
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Earnings, (a) gains or losses from sales, exchanges and other dispositions of
property not in the ordinary course of business and (b) gains or losses from
sales, exchanges and other dispositions of any Tower, Land Lease Agreement or
management agreement in respect of a Tower, all on an after tax basis.
"FCC" means the Federal Communications Commission or any governmental
---
authority at any time substituted therefor.
"FAA" means the Federal Aviation Administration or any governmental
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authority at any time substituted therefor.
"Fee Letter" means the letter agreement among the Administrative
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Agent, the Syndication Agent and the Borrowers dated as of October 31, 1997,
regarding certain fees.
"Fixed Charge Coverage Ratio" means, as of any date of determination,
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the ratio of Operating Cash Flow for the four quarter period then ended or most
recently ended as of such date to Historical Fixed Charges as of such date.
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"GAAP" means generally accepted accounting principles in effect from
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time to time in the United States, consistently applied.
"Guarantor" means one who pledges its credit or property in any
---------
manner, or otherwise becomes responsible for the payment or other performance of
the indebtedness, contract or other obligation of another Person and includes
(without limitation) any guarantor (whether of payment or of collection),
surety, co-maker, endorser or one who agrees conditionally or otherwise to make
any purchase, loan or investment in order thereby to enable another to prevent
or correct a default of any kind and one who has endorsed (otherwise than for
collection or deposit in the ordinary course of business), or has discounted
with recourse or agreed (contingently or otherwise) to purchase or repurchase or
otherwise acquire or become liable for, any Indebtedness or who has entered into
any agreement for the purchase or other acquisition of any product, materials or
supplies, or for the making of shipments, or for the payment for services, if in
any such case payment therefor is to be made regardless of the nondelivery of
the product, materials or supplies or the non-furnishing of the services.
"Hazardous Material" means, collectively, (a) any petroleum or
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petroleum products, flammable materials, explosives, radioactive materials,
asbestos, urea formaldehyde foam insulation, and transformers or other equipment
that contain polychlorinated biphenyls ("PCBs"), (b) any chemicals or other
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materials or substances that are now or hereafter become defined as or included
in the definition of "hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous wastes", "restricted hazardous wastes", "toxic
substances", "toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under any Environmental Law.
"Historical Fixed Charges" means, as of any date of determination, the
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sum (without duplication) of the aggregate amount of (a) all Debt Service
payments made by the Borrowers and their Subsidiaries during the four quarter
period then ended or most recently ended, (b) Capital Expenditures made by the
Borrowers and their Subsidiaries during such four quarter period, (c) income
taxes incurred by the Borrowers and their Subsidiaries during such four quarter
period and (d) Capital Distributions made by CCI during such four quarter
period.
9
"Holdco" means Crown Castle International Corp., a Delaware
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corporation which owns all of the issued and outstanding capital stock of CCI.
"Holdco Guaranty" has the meaning assigned to it in Section 6.6(a).
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"Holdco Pledge Agreement" has the meaning assigned to it in Section
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6.3(a).
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
assets purchased by such Person, (e) all obligations of such Person issued or
assumed as the deferred purchase price of property or services (excluding trade
accounts payable and accrued expenses arising in the ordinary course of business
and not more than ninety days past due), (f) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the obligations secured thereby have
been assumed by such Person, (g) all obligations or liabilities in respect of
which such Person is a Guarantor, (h) all Capitalized Lease Obligations of such
Person, (i) all Rate Hedging Obligations, and (j) all obligations of such Person
as an account party to reimburse any bank or any other Person in respect of
letters of credit (including the Letters of Credit) or bankers' acceptances.
The Indebtedness of any Person shall include any recourse Indebtedness of any
partnership in which such Person is a general partner.
"Indenture" means the Indenture dated as of November 25, 1997, between
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Holdco and United States Trust Company of New York in respect of Holdco's 10
5/8% Senior Discount Notes due 2007.
"Interest Expense" means, for any period, the gross interest expense
----------------
incurred by the Borrowers and their Subsidiaries in respect of their
Indebtedness for such period (including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the interest component
of all payments associated with Capitalized Lease Obligations, commissions,
10
discounts and other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any) pursuant to Rate
Hedging Obligations), determined on a consolidated basis, all fees payable under
Section 2.6 or the Fee Letter and any other fees, charges, commissions and
discounts in respect of Indebtedness, including fees payable in connection with
the Letters of Credit. For purposes of the foregoing, gross interest expense
shall be determined after giving effect to any net payments made or received by
the Borrowers with respect to Rate Hedging Obligations.
"Interest Period" means, with respect to any LIBOR Loan, a period of
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one, two or three months, selected by the Borrowers, commencing on the date such
Loan is made, continued or converted and ending on the last day of such period.
Whenever the last day of an Interest Period would otherwise occur on a day other
than a Banking Day, the last day of such Interest Period shall occur on the next
succeeding Banking Day; provided, however, that if such extension of time would
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cause the last day of such Interest Period to occur in the next calendar month,
the last day of such Interest Period shall occur on the next preceding Banking
Day; and provided, further, that if the first day of an Interest Period is the
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last Banking Day of a month or a day for which there is no numerically
corresponding day in the appropriate subsequent calendar month, then such
Interest Period shall end on the last Banking Day of the appropriate subsequent
calendar month. The Borrowers shall not select any Interest Period which
extends beyond any date on which a payment is required to be made pursuant to
Section 2.1(b) or Section 2.5(b)(i) unless the sum of the amount available to be
drawn under the Reducing Commitment plus the aggregate principal balance of all
Base Rate Loans and all LIBOR Loans with Interest Periods ending prior to such
date is at least equal to the maximum amount that is required to be paid on such
date.
"Issuing Bank" means Key Corporate Capital Inc. in its capacity as the
------------
issuer of the Letters of Credit, or any successor issuer of the Letters of
Credit. The Issuing Bank may, in its discretion, arrange for one or more Letters
of Credit to be issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Bank" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
"Land Lease Agreement" means each lease for real property on which a
--------------------
Borrower or one of their Subsidiaries owns, operates or maintains a Tower.
11
"Letters of Credit" has the meaning assigned to it in Section 2.1(d).
-----------------
"Leverage Ratio" means, as of any date of determination, the ratio of
--------------
Total Debt as of such date to Test Operating Cash Flow as of such date.
"LIBOR" means the average (rounded upward to the nearest 1/16th of 1%)
-----
of the per annum rates at which deposits in immediately available funds in
United States dollars for the relevant Interest Period and in the amount of the
LIBOR Loan to be disbursed or to remain outstanding during such Interest Period,
as the case may be, are offered to the Administrative Agent by prime banks in
any Eurodollar market reasonably selected by the Administrative Agent,
determined as of 11:00 a.m. London time (or as soon thereafter as practicable),
two Banking Days prior to the beginning of the relevant Interest Period.
"LIBOR Loans" means those Reducing Loans described in Section 2.1 on
-----------
which the Borrowers shall pay interest at a rate based on the applicable LIBOR
Rate.
"LIBOR Prepayment Premium" means, with respect to the prepayment or
------------------------
conversion of any LIBOR Loan or any other receipt or recovery of any LIBOR Loan
prior to the end of the applicable Interest Period, whether by voluntary
prepayment, acceleration, conversion to a Base Rate Loan or otherwise, an amount
equal to the sum of (a) the product of (i) the excess, if any, of the rate of
interest then applicable to such Loan pursuant to Section 3.1 at the time of
such prepayment or conversion over LIBOR calculated as of such date, multiplied
by (ii) the principal amount so prepaid, converted or accelerated, as the case
may be, multiplied by (iii) a fraction, the numerator of which is the number of
days remaining in the related Interest Period and the denominator of which is
360 (taking into consideration the applicable compounding for the frequency of
installment payments of the Loans being prepaid), plus (b) out-of-pocket costs
and expenses incurred by the Banks and the Administrative Agent with respect to
such prepayment.
"LIBOR Rate" means a rate per annum equal to the quotient obtained
----------
(rounded upwards, if necessary, to the nearest 1/100th of 1%) by dividing (a)
the applicable LIBOR by (b) 1.00 minus the LIBOR Reserve Percentage.
"LIBOR Reserve Percentage" means for any day that percentage
------------------------
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the
12
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, all basic, supplemental, marginal
and other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) for a member bank of the Federal
Reserve System in respect of Eurocurrency Liabilities (as that term is defined
in Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time). The LIBOR Rate shall be adjusted automatically on and
as of the effective date of any change in the LIBOR Reserve Percentage.
"License" means any license, authorization, permit, consent, franchise
-------
ordinance, registration, certificate, agreement or other right filed with,
granted by, or entered into by a federal, state or local governmental authority
which permits or authorizes the construction or maintenance of a Tower or the
use of a Tower for wireless communications.
"Licensing Authority" means a governmental authority which has granted
-------------------
a License.
"Lien" as applied to the property of any Person means: (a) any
----
mortgage, lien, pledge, charge, lease constituting a Capitalized Lease
Obligation, conditional sale or other title retention agreement, or other
security interest or encumbrance of any kind in respect of any property of such
Person, or upon the income or profits therefrom; (b) any arrangement, express or
implied, under which any property of such Person is transferred, sequestered or
otherwise identified for the purpose of subjecting the same to the payment of
Indebtedness in priority to the payment of the general, unsecured creditors of
such person; (c) the filing of, or any agreement to give, any financing
statement under the Uniform Commercial Code or its equivalent of any
jurisdiction in respect of Indebtedness; and (d) in the case of securities or
other equity interests, any purchase option, call or similar right of a third
party with respect to such securities or other equity interests.
"Loans" means the Reducing Loans, including all amounts drawn under
-----
any Letter of Credit (which amounts shall be deemed to be Reducing Loans) and
not repaid.
"Material Adverse Effect" means a material adverse effect upon or
-----------------------
change in (a) the properties, assets, business, operations, financial condition,
prospects, liabilities or capitalization of Holdco, either Borrower or
13
any Subsidiary of either Borrower or on the ability of either Borrower or any
Subsidiary of either Borrower to conduct its business or to own or maintain its
Material Towers, (b) the ability of Holdco, either Borrower, any of their
Subsidiaries or any other party to a Collateral Document (other than the
Administrative Agent and the Banks) to perform its obligations hereunder or
under any other Collateral Document to which it is a party, (c) the validity or
enforceability of this Agreement, any Note or any other Collateral Document, or
(d) the rights or remedies of the Administrative Agent or the Banks under this
Agreement, the Notes or any other Collateral Document or at law or in equity or
the value of any material collateral granted to the Administrative Agent, for
the benefit of the Banks, pursuant to any Collateral Document.
"Material Towers" means, as of any date of determination, any Tower or
---------------
any group or set of Towers wheresoever located to which more than 10% of the
Operating Cash Flow for any of the immediately prior four fiscal quarters is
attributable.
"Mortgages" has the meaning assigned to it in Section 6.4(a).
---------
"Net Earnings" means the consolidated net income (or deficit) of the
------------
Borrowers and their Subsidiaries for the period involved, after taxes, if any,
and after all proper charges and reserves (excluding, however, Extraordinary
Items), all as determined in accordance with GAAP.
"Notes" means the Reducing Notes and any notes issued in connection
-----
with the issuance of a Letter of Credit.
"Obligation" means any obligation of the Borrowers (a) to pay to the
----------
Banks the principal of and interest on the Loans and the Notes in accordance
with the terms hereof and thereof, including, without limitation, any interest
accruing after the date of any filing by either Borrower or any of their
Subsidiaries of any petition in bankruptcy or the commencing of any bankruptcy,
insolvency or similar proceedings with respect to either Borrower or any of
their Subsidiaries, regardless of whether such interest is allowable as a claim
in any such proceeding; (b) in respect of the contingent liability of the
Borrowers under all outstanding Letters of Credit; (c) in respect of any Rate
Hedging Obligations owing to any Bank or any Affiliate of any Bank; (d) to pay,
satisfy or perform any other agreement, liability or obligation of either
Borrower or any other Person to the Administrative Agent or any Bank,
14
arising under this Agreement or any Collateral Document, whether now existing or
hereafter incurred by reason of future advances or otherwise, matured or
unmatured, direct or contingent, joint or several, including any extensions,
modifications or renewals thereof and substitutions therefor, and including
without limitation all fees, indemnification amounts, costs and expenses,
including interest thereon and reasonable attorneys' fees, incurred by the
Administrative Agent or any Bank for the protection and preservation or
enforcement of its rights and remedies arising hereunder or under the Collateral
Documents; (e) to repay to the Administrative Agent and the Banks all amounts
advanced at any time by the Administrative Agent or the Banks hereunder or under
any Collateral Document, including, without limitation, advances for principal
or interest payments to prior secured parties, mortgagees, or lienors or other
Persons, or for taxes, levies, insurance, rent or repairs to, or maintenance or
storage of, any of the property of either Borrower or of any of their
Subsidiaries; (f) to perform any covenant or agreement made with the
Admiistrative Agent or the Banks pursuant to this Agreement or any Collateral
Document; (g) to take any other action in respect of any other liability of any
nature of either Borrower or any of their Subsidiaries to the Administrative
Agent or the Banks under this Agreement or any Collateral Document; or (h) any
renewal, continuation or extension of any of the foregoing.
"Offering Memorandum" means the Offering Memorandum dated November 20,
-------------------
1997, of Holdco relating to its 10 5/8% Senior Discount Notes due 2007.
"Operating Cash Flow" means, with respect to the Borrowers for any
-------------------
period, the Net Earnings for such period plus (a) provision for taxes based on
income or profits of the Borrowers and their Subsidiaries for such period, to
the extent that such provision for taxes was included in computing such Net
Earnings, plus (b) Interest Expense of the Borrowers and their Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including,
without limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any deferred
payment obligations, the interest component of all payments associated with
Capitalized Lease Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance financings, and
net payments (if any) pursuant to Rate Hedging Obligations), to the extent that
any such expense was deducted in computing such Net Earnings, plus (c)
depreciation, amortization (including amortization of goodwill and other
intangibles)
15
and other non-cash expenses (excluding any such non-cash expense to the extent
that it represents an accrual of or reserve for cash expenses in any future
period) of the Borrowers and their Subsidiaries for such period to the extent
that such depreciation, amortization and other non-cash expenses were deducted
in computing such Net Earnings, minus (d) non-cash items increasing such Net
Earnings for such period (excluding any items that were accrued in the ordinary
course of business), in each case on a consolidated basis and determined in
accordance with GAAP. For purposes of calculating Operating Cash Flow for any
period, each Qualified Acquisition and each sale or other disposition of any
Towers and related assets, whether by purchase or sale of stock or assets, which
occurs during such period, shall be deemed to have occurred on the first day of
such period; accordingly, the operating cash flow received by the seller of the
Towers and related assets, or of a management agreement in respect thereof,
acquired pursuant to each Qualified Acquisition shall be included for the entire
period and the Operating Cash Flow relating to any Towers and related assets, or
of a management agreement in respect thereof, sold or otherwise disposed of
during such period shall be excluded from the calculation of Operating Cash Flow
for the entire period.
"PBGC" means the Pension Benefit Guaranty Corporation or any
----
governmental authority at any time substituted therefor.
"Pension Plan" means an employee pension benefit plan as defined in
------------
Section 3(2) of ERISA which is subject to the provisions of Section 302 or Title
IV of ERISA or Section 412 of the Code.
"Permitted Lien" means any of the following Liens:
--------------
(a) Liens for taxes or assessments and similar charges, which
are either not delinquent or being contested diligently and in good faith by
appropriate proceedings, and as to which the affected Borrower or Subsidiary has
set aside adequate reserves on its books and which do not entail any risk of
loss, forfeiture, foreclosure or sale of the property subject thereto;
(b) statutory Liens, such as mechanic's, materialman's,
warehouseman's, landlord's, artisan's, ▇▇▇▇▇▇▇'▇, contractor's, carrier's or
other like Liens, (i) incurred in good faith in the ordinary course of business,
(ii) which are either not delinquent or are being contested diligently and in
good faith by appropriate proceedings, (iii) as to which the affected Borrower
or Subsidiary has
16
set aside adequate reserves upon its books or bonded satisfactorily to the
Administrative Agent and (iv) which do not entail any risk of loss, forfeiture,
foreclosure or sale of the property subject thereto;
(c) encumbrances consisting of zoning restrictions, easements,
licenses, reservations, provisions, covenants, conditions, waivers, restrictions
on the use of property or minor irregularities of title, provided that none of
--------
such encumbrances materially impairs the use or value of any property in the
operation of the affected Borrower's or Subsidiary's business;
(d) Liens securing conditional sale, rental or purchase money
obligations permitted under Section 8.4, but only in the property which is the
subject of such obligations;
(e) Liens arising under or pursuant to this Agreement or any
Collateral Document or otherwise securing any Obligation;
(f) Liens in respect of judgments or awards with respect to which the
affected Borrower or Subsidiary is, in good faith, prosecuting an appeal or
proceeding for review and with respect to which a stay of execution upon such
appeal or proceeding for review has been secured, and as to which judgments or
awards the affected Borrower or Subsidiary has established adequate reserves on
its books or has bonded in a manner satisfactory to the Administrative Agent;
(g) pledges or deposits made in the ordinary course of business to
secure payment of worker's compensation, or to participate in any fund in
connection with worker's compensation, unemployment insurance, old-age pensions
or other social security programs;
(h) Liens granted to secure the performance of letters of credit,
bids, tenders, contracts, leases, public or statutory obligations, surety,
customs, appeal and performance bonds and other similar obligations to the
extent permitted herein and not incurred in connection with the borrowing of
money, the obtaining of advances or the payment of the deferred purchase price
of any property; and
(i) any other Liens listed on Exhibit F hereto or to which the
---------
Required Banks have consented in writing.
17
"Person" includes natural persons, governmental agencies and
------
authorities, corporations, business trusts, associations, companies, limited
liability companies, joint ventures and partnerships.
"Plan" means any employee benefit plan, as defined under Section 3(3)
----
of ERISA, established or maintained by either Borrower or any member of the
Controlled Group or any such Plan to which either Borrower or any member of the
Controlled Group is, or in the last six years was, required to contribute on
behalf of its employees.
"Pledge Agreements" means the Holdco Pledge Agreement, the CCI Pledge
-----------------
Agreement and the Subsidiary Pledge Agreement.
"Possible Default" means an event, condition, situation or thing which
----------------
constitutes, or which with the lapse of any applicable grace period or the
giving of notice or both would constitute, an Event of Default.
"Projected Debt Service" means, as of any date of determination, the
----------------------
sum of (a) all scheduled Reducing Commitment reductions under Section 2.1(b)
during the four quarter period following the end of the fiscal quarter then most
recently ended, (b) all principal payments required to be made by the Borrowers
and their Subsidiaries on Total Debt, other than the Loans, but including,
without limitation, Seller Debt and Capitalized Lease Obligations, during such
subsequent four quarter period, and (c) all Interest Expense and fees on Total
Debt to be incurred by the Borrowers and their Subsidiaries during such
subsequent four quarter period. In calculating Projected Debt Service, (i) the
interest rate applicable during such subsequent four quarter period to any
Indebtedness which does not bear interest at a rate which is fixed (either by
its terms or pursuant to an agreement regarding Rate Hedging Obligations) for
the entire subsequent period shall be deemed to be the interest rate in effect
as of the date of determination, and (ii) it shall be assumed that the principal
amount of Loans outstanding as of the date of determination will be outstanding
for the subsequent four quarter period subject to any required commitment
reductions.
"Purchase Price", in respect of any Qualified Acquisition (whether of
--------------
assets, stock or other equity interests), means the total consideration payable
in connection with such acquisition, whether payable in cash, by a note or other
property, or by the assumption of indebtedness and including all forms of
deferred
18
compensation, such as non-compete agreements, consulting agreements and the
like.
"Qualified Acquisition" has the meaning assigned to it in Section
---------------------
8.10(b).
"Quarterly Date" means the last day of each March, June, September and
--------------
December.
"Ratable Share" means, with respect to any Bank, its pro rata share of
-------------
the Reducing Commitment, the Letters of Credit or the Loans. As of the date of
this Agreement, the Ratable Shares of the Banks shall be as listed on Schedule
1.1 attached hereto.
"Rate Hedging Obligations" means any and all obligations of the
------------------------
Borrowers, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (a) any and all
agreements, devices or arrangements designed to protect the Borrowers from the
fluctuations of interest rates, including, but not limited to, interest rate
exchange or swap agreements and interest rate cap or collar protection
agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any of the foregoing.
"Reducing Commitment" has the meaning assigned to it in Section
-------------------
2.1(a).
"Reducing Loans" has the meaning assigned to it in Section 2.1(a).
--------------
"Reducing Notes" has the meaning assigned to it in Section 2.3.
--------------
"Regulatory Change" means the adoption of or any change in federal,
-----------------
state or local treaties, laws, rules, regulations or policies or the adoption of
or change in any interpretations, guidelines, directives or requests of or under
any federal, state or local treaties, laws, rules, regulations or policies
(whether or not having the force of law) by any court, governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof.
"Release" shall mean any release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, including, without limitation, the movement
of
19
Hazardous Materials through ambient air, soil, surface water, ground water,
wetlands, land or subsurface strata.
"Reportable Event" means a reportable event as that term is defined in
----------------
Title IV of ERISA, excluding, however, such events as to which the PBGC by
regulation has waived the requirement of Section 4043(a) of ERISA that it be
notified within thirty days of the occurrence of such event (provided that a
--------
failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waivers in accordance with Section 412(d) of the Code).
"Required Banks" means, at any time, Banks holding at least 66 2/3% of
--------------
the then aggregate unpaid principal amount of the Notes and the stated amount of
the outstanding Letters of Credit, or, if no principal amount of the Notes or
any Letter of Credit is then outstanding, Banks having at least 66 2/3% of the
Reducing Commitment.
"Security Agreements" means the Borrowers Security Agreement and the
-------------------
Subsidiary Security Agreement.
"Seller Debt" has the meaning assigned to it in Section 8.10(b).
-----------
"Southpointe Lease" means the Lease dated January 5, 1998, between
-----------------
Southpointe Corporate Centers, Ltd. and CCI with respect to property located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania.
"Spectrum" means Spectrum Site Management Corporation, a Delaware
--------
corporation which is a wholly owned Subsidiary of CCI.
"Subsidiary" means, with respect to any Person, each partnership,
----------
corporation or limited liability company, the majority of the outstanding
partnership interests, capital stock, membership interests or voting power of
which is (or upon the exercise of all outstanding warrants, options and other
rights would be) owned, directly or indirectly, at the time in question by such
Person.
"Subsidiary Guaranty" has the meaning assigned to it in Section
-------------------
6.6(b).
"Subsidiary Pledge Agreement" has the meaning assigned to it in
---------------------------
Section 6.3(c).
20
"Subsidiary Security Agreement" has the meaning assigned to it in
-----------------------------
Section 6.2(b).
"TEA" means TEA Group Incorporated, a Georgia corporation which is a
---
wholly owned Subsidiary of CCI.
"TeleStructures" means TeleStructures, Inc., a Georgia corporation
--------------
which is a wholly owned Subsidiary of TEA.
"Termination Date" means December 31, 2004.
----------------
"Test Operating Cash Flow" means, as of any date, the sum of (a)
------------------------
Operating Cash Flow for the four quarter period then ended or then most recently
ended less that portion of such Operating Cash Flow which is attributable to the
leasing or licensing of space on Towers, and (b) the product of four times that
portion of Operating Cash Flow for the quarter then ended or most recently ended
which is attributable to the leasing or licensing of space on Towers.
"Total Debt" means, without duplication, (a) all Indebtedness of the
----------
Borrowers and their Subsidiaries for borrowed money, including the Loans, all
Capitalized Lease Obligations of the Borrowers and their Subsidiaries, all other
Indebtedness of the Borrowers and their Subsidiaries represented by notes or
drafts representing extensions of credit for borrowed money, all other
Indebtedness of other Persons for which either Borrower or any of their
Subsidiaries is a Guarantor, all obligations of the Borrowers and their
Subsidiaries evidenced by bonds, debentures, notes or other similar instruments
(including all such obligations to which any property or asset owned by a
Borrower or any Subsidiary of a Borrower is subject, whether or not the
obligation secured thereby shall have been assumed) and all obligations of
either Borrower or any of their Subsidiaries as an account party to reimburse
any bank or any other Person in respect of letters of credit (other than the
Letters of Credit) or bankers' acceptances, plus (b) each of the following items
of Indebtedness to the extent such Indebtedness has a maturity date, or requires
a principal payment, prior to the Termination Date: all Indebtedness for
borrowed money of Holdco, all other Indebtedness of Holdco represented by notes
or drafts representing extensions of credit for borrowed money, all obligations
evidenced by bonds, debentures, notes or other similar instruments of Holdco and
all obligations of Holdco as an account party to reimburse any bank or any other
Person in respect of letters of credit or bankers' acceptances.
21
"Towers" means the wireless communications towers owned or leased by
------
the Borrowers and their Subsidiaries or which are subject to a management
agreement to which either Borrower or a Subsidiary of a Borrower is a party.
"Working Capital" means, as of any date, the excess of the Borrowers'
---------------
and their Subsidiaries' combined current assets, other than cash, over their
combined current liabilities, other than the current portion of long term debt,
as of such date.
1.2 Other Terms. Except as otherwise specifically provided in this
-----------
Agreement, each term not otherwise expressly defined herein which is defined in
the Uniform Commercial Code, as amended (the "UCC"), as adopted in any
applicable jurisdiction, shall have the meaning assigned to it in the UCC in
effect in such jurisdiction. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. All references
herein to Sections, Exhibits or Schedules shall be deemed to be references to
Sections of, and Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Whenever any agreement, promissory note or other
instrument or document is defined in this Agreement or any Collateral Document,
such definition shall be deemed to mean and include, from and after the date of
any amendment, restatement or modification thereof, such agreement, promissory
note or other instrument or document as so amended, restated or modified. All
terms defined in this Agreement in the singular shall have comparable meanings
when used in the plural and vice versa. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement.
1.3 Accounting Terms; Income Taxes. All accounting terms used in
------------------------------
this Agreement which are not expressly defined herein shall have the respective
meanings given to them in accordance with GAAP, all computations shall be made
in accordance with GAAP, and all balance sheets and other financial statements
shall be prepared in accordance with GAAP. All financial or accounting
calculations or determinations required pursuant to this Agreement unless
otherwise expressly provided shall be made on a consolidated basis for the
Borrowers and their Subsidiaries. The term "income tax" as used herein shall be
deemed to include the earned surplus element of the franchise tax imposed by the
State of Texas on income allocated to Texas.
22
SECTION 2. THE LOANS.
---------
2.1 The Reducing Commitment and the Reducing Loans.
----------------------------------------------
(a) Subject to the terms and conditions hereof, during the
period from the Closing Date up to but not including the Termination Date, the
Banks severally, but not jointly, shall make loans to the Borrowers in such
amounts as the Borrowers may from time to time request but not exceeding in
aggregate principal amount at any one time outstanding $100,000,000 (as such
amount may be reduced from time to time, the "Reducing Commitment"); provided,
--------
however, that in no event shall the aggregate principal amount of such loans
-------
plus the aggregate stated amount of the Letters of Credit exceed the Reducing
Commitment. All amounts borrowed by the Borrowers pursuant to this Section
2.1(a) and all amounts drawn under any Letter of Credit and not repaid may be
referred to hereinafter collectively as the "Reducing Loans." Each Reducing Loan
requested by the Borrowers shall be funded by the Banks in accordance with their
Ratable Shares of the requested Reducing Loan. A Bank shall not be obligated
hereunder to make any additional Reducing Loan if immediately after making such
Reducing Loan, the aggregate principal balance of all Reducing Loans made by
such Bank plus such Bank's Ratable Share of any outstanding Letters of Credit
would exceed such Bank's Ratable Share of the Reducing Commitment. The Reducing
Loans may be comprised of Base Rate Loans or LIBOR Loans, as provided in Section
2.2.
(b) On each date set forth in the table below, the Reducing
Commitment shall automatically reduce by the amount set forth for such date in
such table:
=====================================================================
Calendar March 31 June 30 September 30 December 31
Year
=====================================================================
2001 $5,000,000 $5,000,000 $5,000,000 $5,000,000
=====================================================================
2002 $5,000,000 $5,000,000 $5,000,000 $5,000,000
=====================================================================
2003 $5,000,000 $5,000,000 $5,000,000 $5,000,000
=====================================================================
2004 $5,000,000 $5,000,000 $5,000,000 all
remaining
principal
=====================================================================
23
(c) Prior to the Termination Date, the Borrowers may, at their
option, from time to time prepay all or any portion of the Reducing Loans,
subject to the provisions of Section 2.5, and the Borrowers may reborrow from
time to time hereunder amounts so paid up to the amount of the Reducing
Commitment in effect at the time of reborrowing.
(d) Letters of Credit.
-----------------
(i) Issuance. Subject to the terms and conditions hereof,
--------
including the provisions of Section 6, the Borrowers may request that the
Issuing Bank issue, from time to time during the period from the Closing Date
through the date that is thirty days prior to the Termination Date, and the
Issuing Bank agrees to issue, from time to time, letters of credit in an
aggregate stated amount not exceeding $5,000,000 (the "Letters of Credit"). No
Letter of Credit shall be issued for a term of more than three hundred sixty-
four days, and no Letter of Credit shall have an expiration date which is later
than the Termination Date. No Letter of Credit shall be issued if after giving
effect to such issuance, the sum of the outstanding principal balance of the
Reducing Loans (including amounts drawn on Letters of Credit and not repaid),
plus the aggregate stated amount of outstanding Letters of Credit, would exceed
the Reducing Commitment. Each Letter of Credit shall be issued in the manner and
on the conditions set forth in this Section 2.1(d) and Section 6. Each Letter of
Credit shall be in the Issuing Bank's standard form for letters of credit or in
such other form as is acceptable to the Issuing Bank in form and substance.
(ii) Application. Each request for a Letter of Credit shall be
-----------
made to the Issuing Bank by an application on the Issuing Bank's standard form
or in such other manner as the Issuing Bank may approve. Promptly following the
issuance of any Letter of Credit, the Issuing Bank shall notify the
Administrative Agent and the Banks of such issuance.
(iii) Participation by the Banks.
--------------------------
(A) By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank, the Administrative Agent or the
other Banks in respect thereof, the Issuing Bank hereby grants to each other
Bank, and each other Bank hereby agrees to acquire from the Issuing Bank, a
participation in such Letter of Credit equal to such Bank's Ratable Share of the
stated amount of such Letter of Credit, effective upon the issuance
24
of such Letter of Credit; provided, however, that no Bank shall be required to
-------- -------
acquire participations in any Letter of Credit that would result in its Ratable
Share of the sum of outstanding Reducing Loans plus the stated amount of all
outstanding Letters of Credit to be greater than its Ratable Share of the
Reducing Commitment. In consideration and in furtherance of the foregoing, each
Bank hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, in accordance with Section
2.1(d)(iv), such Bank's Ratable Share of each amount disbursed pursuant to a
Letter of Credit; provided, that payment by the Issuing Bank under such Letter
--------
of Credit against presentation of such draft or document shall not have
constituted gross negligence or willful misconduct of the Issuing Bank.
(B) Each Bank acknowledges and agrees that its obligation
to acquire participations pursuant to paragraph (A) above in respect of Letters
of Credit is absolute and unconditional and shall not be affected by any
circumstances whatsoever, including the occurrence and continuance of an Event
of Default or Possible Default, or the reduction or termination of the Reducing
Commitment, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.
(iv) Letter of Credit Disbursements.
------------------------------
(A) If the Administrative Agent has not received from the
Borrowers the payment permitted pursuant to paragraph (B) of this Section
2.1(d)(iv) by 11:00 a.m., Cleveland time, on the date on which the Issuing Bank
has notified the Borrowers that payment of a draft presented under any Letter of
Credit will be made, as provided in such paragraph (B), the Administrative Agent
shall promptly notify the Issuing Bank and each other Bank of the disbursement
to be made under such Letter of Credit and, in the case of each Bank, its
Ratable Share of such disbursement. Each Bank shall pay to the Administrative
Agent, not later than 1:00 P.M., Cleveland time, on such date (or, if the
Issuing Bank shall elect to defer reimbursement from the Banks hereunder, such
later date as the Issuing Bank shall specify by notice to the Administrative
Agent and the Banks), such Bank's Ratable Share of such disbursement, which the
Administrative Agent shall promptly pay to the Issuing Bank. The Administrative
Agent will promptly remit to each Bank its share of any amount subsequently
received by the Administrative Agent from the Borrowers in respect of such
disbursement; provided that amounts so received for the account of any Bank
--------
prior
25
to payment by such Bank of amounts required to be paid by it hereunder in
respect of any disbursement shall be remitted to the Issuing Bank.
(B) If the Issuing Bank shall receive any draft presented
under any Letter of Credit, the Issuing Bank shall give notice thereof as
provided in paragraph (C) below. If the Issuing Bank shall pay any draft
presented under a Letter of Credit, the Borrowers may (but shall not be required
to) pay to the Administrative Agent, for the account of the Issuing Bank, an
amount equal to the amount of such draft before 11:00 A.M., Cleveland time, on
the Banking Day on which the Issuing Bank shall have notified the Borrowers that
payment of such draft will be made. The Administrative Agent will promptly pay
any such amounts received by it to the Issuing Bank.
(C) The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment
under a Letter of Credit to ascertain that the same appear on their face to be
in substantial conformity with the terms and conditions of such Letter of
Credit. The Issuing Bank shall as promptly as reasonably practicable give oral
notification, confirmed in writing, to the Administrative Agent and the
Borrowers of such demand for payment and the determination by the Issuing Bank
as to whether such demand for payment was in accordance with the terms and
conditions of such Letter of Credit and whether the Issuing Bank has made or
will make a disbursement thereunder, provided that the failure to give such
notice shall not relieve the Borrowers of their obligation to reimburse such
disbursement, and the Administrative Agent shall promptly give each Bank notice
thereof.
(D) Any amounts paid by the Issuing Bank on any Letter of
Credit shall be deemed to be a Reducing Loan for all purposes of this Agreement
and shall bear interest from the date of payment by the Issuing Bank at the
rates provided in Section 3.1 until paid in full.
(v) Obligation to Repay Letter of Credit Disbursements, etc. The
-------------------------------------------------------
Borrowers assume all risks in connection with the Letters of Credit and the
Borrowers' obligation to repay each disbursement under a Letter of Credit shall
be absolute, unconditional and irrevocable under any and all circumstances and
irrespective of:
(A) any lack of validity or enforceability of any Letter of
Credit;
26
(B) the existence of any claim, setoff, defense or other
right which the Borrowers or any other person may at any time have against the
beneficiary under any Letter of Credit, the Administrative Agent, the Issuing
Bank or any other Bank (other than the defense of payment in accordance with the
terms of this Agreement or a defense based on the gross negligence or willful
misconduct of the Issuing Bank) or any other Person in connection with this
Agreement or any other agreement or transaction;
(C) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; and
(D) any other circumstance or event whatsoever, whether or
not similar to any of the foregoing.
It is understood that in making any payment under a Letter of Credit
(I) the Issuing Bank's exclusive reliance as to any and all matters set forth
therein, including reliance on the amount of any draft presented under such
Letter of Credit, whether or not the amount due to the beneficiary equals the
amount of such draft and whether or not any documents presented pursuant to such
Letter of Credit prove to be insufficient in any respect, if such document on
its face appears to be in order, and whether or not any such Letter of Credit
proves to be forged or invalid or any statement therein proves to be inaccurate
or untrue in any respect whatsoever and (II) any noncompliance in any immaterial
respect of the documents presented under a Letter of Credit with the terms
thereof, shall, in each case, not be deemed willful misconduct or gross
negligence of the Issuing Bank.
(vi) Indemnification. The Borrowers jointly and severally shall:
---------------
(A) indemnify and hold the Administrative Agent and each Bank (including the
Issuing Bank) harmless from any loss resulting from any claim, demand or
liability which may be asserted against the Administrative Agent or such Bank in
connection with actions taken under any Letter of Credit, and (B) reimburse the
Administrative Agent or such Bank for any fees or other reasonable expenses paid
or incurred by the Administrative Agent or such Bank in connection with any
Letter of Credit, other than any loss or expense resulting from the
Administrative Agent's or such Bank's willful misconduct or gross negligence.
27
(vii) Security. Upon the occurrence of any Event of Default,
--------
the Borrowers shall, upon demand, pay to the Issuing Bank the stated amount of
all outstanding Letters of Credit, which amount the Issuing Bank shall hold as
security for the obligations incurred under the Letters of Credit, this
Agreement and the Notes. The payment by the Borrowers of such security shall not
terminate the obligations of the Borrowers under this Section 2.1(d).
(viii) Additional Costs. If any Regulatory Change shall either
----------------
(A) impose upon, modify, require, make or deem applicable to the Issuing Bank,
the Administrative Agent or any Bank (or its holding company) any reserve
requirement, special deposit requirement, insurance assessment or similar
requirement against or affecting any Letter of Credit issued or to be issued
hereunder, or (B) subject the Issuing Bank, the Administrative Agent or any Bank
to any tax, charge, fee, deduction or withholding of any kind whatsoever, or (C)
impose any condition upon or cause in any manner the addition of any supplement
to or increase of any kind to the Issuing Bank's, the Administrative Agent's or
any Bank's (or its holding company's) capital or cost base for issuing such
Letter of Credit which results in an increase in the capital requirement
supporting such Letter of Credit, or (D) impose upon, modify, require, make or
deem applicable to the Issuing Bank, the Administrative Agent or any Bank (or
its holding company) any capital requirement, increased capital requirement or
similar requirement such as the deeming of such Letters of Credit to be assets
held by the Issuing Bank, the Administrative Agent or such Bank (or its holding
company) for capital calculation or other purposes and the result of any events
referred to in (A), (B), (C) or (D) above shall be to increase the costs or
decrease the benefit in any way to the Issuing Bank, the Administrative Agent or
a Bank (or its holding company) of issuing, maintaining or participating in such
Letters of Credit, then and in such event the Borrowers shall, within ten days
after the mailing of written notice of such increased costs and/or decreased
benefits to the Administrative Agent and the Borrowers, pay to the Issuing Bank,
the Administrative Agent or such Bank all such additional amounts which in the
Issuing Bank's, the Administrative Agent's or such Bank's sole good faith
calculation as allocated to such Letters of Credit, shall be sufficient to
compensate it (or its holding company) for all such inreased costs and/or
decreased benefits. The Issuing Bank's, the Administrative Agent's or such
Bank's calculation shall be conclusive absent manifest error.
(ix) Fees. Each Letter of Credit shall be issued for a fee
----
equal to the product of the Applicable
28
Margin applicable to LIBOR Loans as of the date of issuance thereof times the
stated amount thereof, payable upon issuance. The fee shall be payable to the
Administrative Agent for the benefit of the Banks in accordance with their
Ratable Shares. If any Letter of Credit is drawn upon prior to its expiration
date, the Banks shall reimburse to the Borrowers that portion of the fee
allocable to the period from the date of the draw to the expiration date,
calculated in accordance with the Issuing Bank's standard letter of credit
procedures. In addition, the Borrowers shall pay to the Issuing Bank for its own
account its standard charges for the issuance of letters of credit and for draws
upon letters of credit, which charges, as of the date hereof, are as follows:
(i) $200 per Letter of Credit, payable upon issuance and (ii) $100 per Letter of
Credit, payable upon a draw under such Letter of Credit.
(e) At any time prior to the Termination Date, by written notice
to the Administrative Agent no later than 11:00 A.M. Cleveland, Ohio time five
Banking Days prior to such termination or reduction, the Borrowers may
permanently terminate, or from time to time permanently reduce, the Reducing
Commitment. Such notice shall be in writing or by telephonic communication
confirmed by telecopy or other facsimile transmission on the same day as such
telephone notice. Any such partial reduction hereunder shall be in an amount
which is not less than $2,500,000 or an integral multiple of $1,000,000 in
excess thereof. The Administrative Agent shall notify the Banks of any such
reduction or termination of the Reducing Commitment.
(f) All Reducing Loans, together with all interest accrued
thereon, shall be paid in full no later than the Termination Date.
(g) All reductions of the Reducing Commitment pursuant to
Section 2.1(e), 2.5(c) or any other provision of this Agreement shall be
permanent reductions, and the Reducing Commitment shall not be increased.
2.2 Making and Conversion/Continuation of the Loans.
-----------------------------------------------
(a) Making of the Loans.
-------------------
(i) Each Reducing Loan shall be made by the Banks in such
amount as the Borrowers shall request, provided that each borrowing shall be in
--------
an amount which is a minimum of (A), with respect to any LIBOR Loan, $1,000,000,
and integral multiples of $500,000 in excess thereof, and (B) with respect to
any Base Rate Loan,
29
$500,000 and integral multiples of $250,000 in excess thereof or such lesser
amount as may be equal to the then unused portion of the Reducing Commitment.
The obligation of the Banks to make any Loan is conditioned upon (x) the fact
that no Possible Default or Event of Default shall then exist or immediately
after the Loan would exist; (y) the fact that all of the Collateral Documents
shall still be in full force and effect; and (z) the fact that the
representations and warranties contained herein and in the Collateral Documents
shall be true and correct in all material respects as if made on and as of the
date of such borrowing, except to the extent that any thereof expressly relate
to an earlier date.
(ii) Subject to the satisfaction of the conditions set
forth in Section 6, Loans shall be effected at the principal banking office of
the Administrative Agent in Cleveland, Ohio, and shall be made at such times as
the Borrowers may request by notice to the Administrative Agent no later than
11:00 A.M. Cleveland, Ohio time (A) three Banking Days prior to the date of a
requested LIBOR Loan and (B) one Banking Day prior to the date of a requested
Base Rate Loan. Such notices shall be in writing, or by telephonic communication
confirmed by telecopy or other facsimile transmission on the same day as the
telephone request, and shall specify the proposed date and the amount of the
requested Loan, whether it is to bear interest initially at an interest rate
based on the Base Rate or the LIBOR Rate, and the Interest Period thereof, if
applicable. Notwithstanding anything to the contrary contained herein, prior to
September 30, 1998, the Borrowers shall not elect an Interest Period of longer
than one month in respect of any LIBOR Loan.
(iii) Upon receipt of each borrowing notice for a Reducing
Loan, the Administrative Agent shall promptly notify each Bank of the type,
Interest Period, if applicable, amount and date of the proposed borrowing or
conversion. Not later than 11:00 A.M. Cleveland time, on the date of a proposed
borrowing of a Reducing Loan, each Bank shall provide the Administrative Agent
at its address specified in Section 12.4 hereof with immediately available funds
covering such Bank's Ratable Share of the borrowing, and the Administrative
Agent shall pay over such immediately available funds to the Borrowers.
(b) Conversion/Continuation of the Loans. At the Borrowers'
------------------------------------
election pursuant to notice given to the Administrative Agent not later than
11:00 A.M. Cleveland, Ohio time three Banking Days prior to such conversion or
continuation, any Base Rate Loan may be converted to, or any
30
LIBOR Loan may be continued as, as the case may be, a LIBOR Loan as requested by
the Borrowers; provided, however, that each conversion and continuation shall be
-------- -------
in an amount which is a minimum of $1,000,000, and integral multiples of
$500,000 in excess thereof; and provided, further, that no Loan may be
-------- -------
continued as or converted to a LIBOR Loan at any time that an Event of Default
or Possible Default exists. If the Borrowers have not timely delivered to the
Administrative Agent such notice with respect to any terminating Interest
Period, the affected LIBOR Loan shall convert to a Base Rate Loan at the end of
such Interest Period.
(c) Number of Interest Rate Options. In no event shall the
-------------------------------
Borrowers have more than five LIBOR Loans outstanding at any time.
2.3 The Notes. All Reducing Loans shall be evidenced by separate
---------
amended and restated promissory notes payable to the Banks substantially in the
form attached hereto as Exhibit A to be duly executed and delivered by the
---------
Borrowers at or prior to the Closing in the principal amount of the Reducing
Commitment (the "Notes"). The Banks may, and are hereby authorized by the
Borrowers to, set forth on the grids attached to the Notes, or in other
comparable records maintained by them, the amount of each Loan, all payments and
prepayments of principal and interest received, the current outstanding
principal balance, and other appropriate information. The aggregate unpaid
amount of any Loan set forth in any records maintained by a Bank with respect to
a Note shall be presumptive evidence of the principal amount owing and unpaid on
such Note. Failure of a Bank to record the principal amount of any Loan on the
grid(s) attached to a Note shall not limit or otherwise affect the obligation of
the Borrowers hereunder or under such Note to repay the principal amount of such
Loan and all interest accruing thereon.
2.4 Fees.
----
(a) Commitment Fees. The Borrowers shall pay to the
---------------
Administrative Agent for the benefit of the Banks a non-refundable commitment
fee of 1/2% per annum (based on a year having 360 days and actual days elapsed)
on the excess of the aggregate average undisbursed amount of the Reducing
Commitment for any period over the aggregate stated amount of the Letters of
Credit then outstanding; provided, however, that the commitment fee shall be
-------- -------
1/4% per annum for any period during which the Leverage Ratio is less than or
equal to 3.5 to 1.0. Such commitment fee shall (i) commence to accrue as of the
date hereof and continue to and
31
including the Termination Date, (ii) be determined by the Administrative Agent
quarterly, and upon the making of each Loan in an amount in excess of
$5,000,000, based on the financial statements and the Compliance Certificate
delivered to the Banks pursuant to Sections 7.5(b) and (c) (in the case of a
quarterly determination) and the compliance certificate delivered pursuant to
Section 6.12(b) (in the case of the determination of the commitment fees upon
the making of a Loan), (iii) be in addition to any other fee required by the
terms and conditions of this Agreement, (iv) be payable quarterly in arrears on
each Quarterly Date and on the date the Reducing Commitment is terminated, and
(v) be shared by the Banks in accordance with their Ratable Shares.
(b) Other Fees. The Borrowers shall pay to the Administrative
----------
Agent and the Syndication Agent such other fees as are set forth in the Fee
Letter.
2.5 Prepayment.
----------
(a) Voluntary Prepayments. By notice to the Administrative Agent
---------------------
(which shall be in writing or by telephonic communication confirmed by telecopy
or other facsimile transmission on the same day as such telephone notice) no
later than 11:00 A.M. Cleveland, Ohio time on the Banking Day prior to such
prepayment (with respect to any Base Rate Loan) or on the third Banking Day
prior to such prepayment (with respect to any LIBOR Loan), the Borrowers may, at
their option, prepay the Reducing Loans in whole at any time or in part from
time to time without penalty or premium (except as provided in Section 2.5(d));
provided, however, that each partial prepayment of the Reducing Loans shall be
-------- -------
in the aggregate principal amount of not less than $500,000 or an integral
multiple of $250,000 in excess thereof.
(b) Mandatory Prepayments.
---------------------
(i) Reduction of Reducing Commitment. If at any time the
--------------------------------
sum of the outstanding principal amount of the Reducing Loans plus the stated
amount of all outstanding Letters of Credit exceeds the Reducing Commitment, the
Borrowers shall immediately prepay the Reducing Loans, without penalty or
premium (except that any such prepayment of any LIBOR Loan shall be made
together with the applicable LIBOR Prepayment Premium), in an amount necessary
to cause the sum of the outstanding principal amount of the Reducing Loans plus
the stated amount of all outstanding Letters of Credit not to exceed the
Reducing
32
Commitment. All accrued interest on the amount prepaid shall be paid with the
prepayment.
(ii) Excess Cash Flow. Within one hundred twenty days
----------------
after thend of each fiscal year of the Borrowers, commencing with the fiscal
year ending on December 31, 2000, the Borrowers shall make a mandatory
prepayment of the Loans in an amount equal to the Applicable Percentage of
Excess Cash Flow, if any, for such fiscal year. Mandatory prepayments made
pursuant to this Section 2.5(b)(ii) shall be determined from the annual
financial statements for such fiscal year delivered by the Borrowers pursuant to
Section 7.5(a) and shall be accompanied by a certificate signed by CCI's chief
financial officer setting forth the calculations from which the amount of such
prepayment was determined.
(iii) Asset Sales. Immediately upon receipt by either
-----------
Borrower or any of their Subsidiaries of cash proceeds of any Asset Sale, the
Borrowers shall immediately make a mandatory prepayment of the Loans in an
amount equal to such cash proceeds, net of any costs directly incurred in
connection with such Asset Sale and any taxes reasonably estimated to be payable
in connection with such Asset Sale as certified by CCI's chief financial
officer. Together with such prepayment, the Borrowers shall deliver to the
Administrative Agent a certificate executed by CCI's chief financial officer
setting forth the calculation of the net cash proceeds of such Asset Sale.
(iv) Unapplied Insurance Proceeds. Within 180 days from
----------------------------
the date of receipt of any cash payments under any insurance policy maintained
by either Borrower or any of their Subsidiaries which have not been reinvested
in productive assets of a kind then used or usable in the business of the
Borrowers or their Subsidiaries or used to maintain the business of the
Borrowers or their Subsidiaries as going concerns, the Borrowers shall make a
mandatory prepayment of the Loans in the amount of such unreinvested or unused
proceeds, net of any costs directly incurred in connection with receiving
payment of such proceeds and any taxes reasonably estimated to be payable in
connection with such receipt as certified by CCI's chief financial officer;
provided, however, that upon and during the continuance of any Event of Default
-------- -------
or Possible Default all such insurance proceeds received by either Borrower or
any Subsidiary shall be applied as a prepayment of the Loans.
(v) Net Equity and Debt Proceeds. If CCI receives any
--------------------------
capital contribution from Holdco which
33
Holdco is required to make to CCI pursuant to the Amended and Restated Holdco
Guaranty, it shall, within five days of receipt of such capital contribution,
make a mandatory prepayment of the Loans in an amount equal to such capital
contribution; provided, however, that if, as of the date of such capital
-------- -------
contribution, (A) the Leverage Ratio is less than 6.0 to 1.0 and (B) either
Borrower is a party to a legally binding acquisition agreement for a Qualified
Acquisition permitted pursuant to Section 8.10(b), then the Borrowers may use
the proceeds of such capital contribution to pay the purchase price of such
Qualified Acquisition.
(c) Application of Prepayments.
--------------------------
(i) Application to LIBOR Prepayment Premium, Accrued
------------------------------------------------
Interest and Principal. All prepayments made pursuant to this Section 2.5 shall
----------------------
be applied as follows: first, to any LIBOR Prepayment Premium then due, then to
accrued interest and then to the outstanding principal of the Loans. For
purposes of the calculation of interest and the determination of whether any
LIBOR Prepayment Premium is due in connection with any such prepayment, such
principal prepayments shall be applied first to the Base Rate Loans and then to
the LIBOR Loans with the shortest remaining Interest Periods.
(ii) Application to the Reducing Loans and the Reducing
--------------------------------------------------
Commitment. Any mandatory prepayment of the Reducing Loans (other than pursuant
----------
to Section 2.5(b)(i)) shall cause the Reducing Commitment to be immediately and
automatically reduced by the amount of such prepayment, and each such mandatory
reduction shall be applied to the subsequent Reducing Commitment reductions set
forth in Section 2.1(b) in the inverse order of maturity; provided, however,
-------- -------
that any mandatory prepayment pursuant to Section 2.5(b)(v) made on or before
December 31, 2000, shall not cause the Reducing Commitment to be reduced.
(d) LIBOR Prepayment Premium. The Borrowers shall pay to the
------------------------
Administrative Agent, for the benefit of the Banks, the applicable LIBOR
Prepayment Premium upon any prepayment or conversion (whether voluntary or
involuntary) of any LIBOR Loan not made on the last day of the applicable
Interest Period.
2.6 Reserves or Deposit Requirements, Etc. If at any time any
-------------------------------------
Regulatory Change (including without limitation, any change in Regulation D of
the Board of Governors of the Federal Reserve System) shall impose any reserve
and/or special deposit requirement (other than reserves included in the LIBOR
Reserve Percentage, the
34
effect of which is reflected in the interest rate of any LIBOR Loan) against
assets held by, or deposits in or for the amount of any loans by, any Bank, and
the result of the foregoing is to increase the cost (whether by incurring a cost
or adding to a cost) to such Bank of taking or maintaining hereunder any LIBOR
Loan or to reduce the amount of principal, interest or fees received by such
Bank with respect to any such Loan, then such Bank shall notify the Borrowers
and the Administrative Agent of such occurrence. Thereafter, within ten days
after written demand by such Bank, the Borrowers shall pay to such Bank
additional amounts sufficient to compensate and indemnify such Bank for such
increased cost or reduced amount. A statement as to the increased cost or
reduced amount as a result of any event mentioned in this Section shall be
submitted by such Bank to the Administrative Agent and to the Borrowers and
shall, in the absence of manifest error, be conclusive and binding as to the
amount thereof.
2.7 Tax Law, Increased Costs, Etc. In the event that by reason of
-----------------------------
any Regulatory Change, any Bank shall, with respect to this Agreement or any
transaction under this Agreement, be subjected to any tax, levy, impost, charge,
fee, duty, deduction or withholding of any kind whatsoever (other than any tax
imposed upon the net income of such Bank and other than changes in franchise
taxes), and if any such measure or any other similar measure shall result in an
increase in the costs to such Bank of making or maintaining any LIBOR Loan or in
a reduction in the amount of principal or interest ultimately receivable by such
Bank in respect of such Loan, then such Bank shall notify the Borrowers and the
Administrative Agent stating the reasons therefor. The Borrowers shall
thereafter pay to such Bank within ten days after written demand such additional
amounts as will compensate such Bank for such increased cost or reduced amount.
A statement as to any such increased cost or reduced amount shall be submitted
by such Bank to the Administrative Agent and to the Borrowers and shall, in the
absence of manifest error, be conclusive and binding as to the amount thereof.
2.8 Eurodollar Deposits Unavailable or Interest Rate Unascertainable.
----------------------------------------------------------------
If any Bank determines that dollar deposits of the relevant amount for the
relevant Interest Period are not available to it in the applicable Eurodollar
market or if the Administrative Agent determines that, by reason of
circumstances affecting such market, adequate and reasonable means do not exist
for ascertaining the LIBOR Rate applicable to such Interest Period, or if any
Bank determines that the LIBOR Rate does not adequately reflect the cost to such
Bank of making such Loan, as the case may
35
be, the Administrative Agent or such Bank shall promptly give notice of such
determination to the Administrative Agent and to the Borrowers, and any request
for a new LIBOR Loan or notice of conversion of an existing Loan to a LIBOR Loan
given thereafter or previously given by the Borrowers and not yet made or
converted shall be deemed a notice to make a Base Rate Loan.
2.9 Changes in Law Rendering LIBOR Loans Unlawful. If at any time
---------------------------------------------
any Regulatory Change shall make it unlawful for any Bank to fund any LIBOR Loan
which it has committed to make hereunder with moneys obtained in the applicable
Eurodollar market, such Bank shall notify the Administrative Agent and the
Borrowers, and the obligation of the Banks to fund such Loan shall, upon the
happening of such event, forthwith be suspended for the duration of such
illegality. If any such change makes it unlawful for any Bank to continue in
effect the funding in the applicable Eurodollar market of any LIBOR Loan
previously made by it hereunder, such Bank shall, upon the happening of such
event, notify the Administrative Agent and the Borrowers thereof in writing
stating the reasons therefor, and the Borrowers shall, on the earlier of (a) the
last day of the then current Interest Period or (b) if required by such
Regulatory Change on such date as shall be specified in such notice, either
convert all such Loans to Base Rate Loans or prepay all such Loans in full.
2.10 Funding. Any Bank may, but shall not be required to, make LIBOR
-------
Loans hereunder with funds obtained outside the United States.
2.11 Indemnity. Without prejudice to any other provisions of
---------
Sections 2.8 through 2.12 or to the obligation of the Borrowers to pay the LIBOR
Prepayment Premium pursuant to Section 2.5(d), the Borrowers, jointly and
severally, hereby agree to indemnify the Administrative Agent and each Bank
against any loss or expense which the Administrative Agent or any Bank may
sustain or incur as a consequence of the Borrowers' failure to borrow any LIBOR
Loan requested pursuant to this Agreement, or the Borrowers' failure to continue
any LIBOR Loan or convert any Base Rate Loan to a LIBOR Loan, in either case
after notice of such continuation or conversion shall have been given to the
Administrative Agent pursuant to Section 2.2(b), or any default by the Borrowers
in payment when due of any amount due hereunder in respect of any LIBOR Loan or
any prepayment or conversion by the Borrowers of a LIBOR Loan prior to the end
of its Interest Period, whether voluntarily or as required pursuant to the terms
hereof, including, but not limited to, any premium or penalty incurred by such
Bank in
36
respect of funds borrowed by it for the purpose of making or maintaining such
Loan, as determined by such Bank; provided, however, that such indemnification
-------- -------
shall be net of any LIBOR Prepayment Premium received by such Bank in respect of
any such action or inaction of the Borrowers. A statement as to any such loss or
expense shall be submitted by such Bank to the Administrative Agent and the
Borrowers for payment under the aforesaid indemnification, which statement
shall, in the absence of manifest error, be conclusive and binding as to the
amount thereof.
2.12 Capital Adequacy. If any Bank shall determine that any
----------------
Regulatory Change regarding capital adequacy or compliance by such Bank (or its
lending office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any governmental authority, central
bank or comparable agency has or would have the effect of reducing the rate of
return on such Bank's capital (or on the capital of such Bank's holding company)
as a consequence of its obligations hereunder to a level below that which such
Bank (or its holding company) could have achieved but for such Regulatory Change
or compliance (taking into consideration such Bank's policies or the policies of
its holding company with respect to capital adequacy) by an amount which such
Bank deems to be material, then from time to time, within ten days after demand
by such Bank, the Borrowers shall pay to such Bank such additional amount or
amounts as will compensate such Bank (or its holding company) for such
reduction. A certificate of such Bank claiming compensation under this Section
and setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such
amount, such Bank may use any reasonable averaging and attribution methods.
Failure on the part of any Bank to demand compensation for any reduction in
return on capital with respect to any period shall not constitute a waiver of
such Bank's rights to demand compensation for any reduction in return on capital
in such period or in any other period. The protection of this Section shall be
available to each Bank regardless of any possible contention of the invalidity
or inapplicability of the law, regulation or other condition which shall have
been imposed.
2.13 Taxes. All sums payable by the Borrowers hereunder or under the
-----
Notes or in respect of the Letters of Credit, whether of principal, interest,
fees, expenses or otherwise, shall be paid in full, free of any deductions or
withholdings for any and all present and future taxes, levies, imposts, stamps,
duties, fees, assessments, deductions, withholdings, and other governmental
charges and
37
all liabilities with respect thereto (collectively referred to as "Taxes"). If
-----
the Borrowers are prohibited by law from making payments hereunder or under the
Notes or in respect of the Letters of Credit free of such deductions or
withholdings, then the Borrowers shall pay such additional amount as may be
necessary in order that the actual amount received by the Banks after such
deduction or withholding shall equal the full amount stated to be payable
hereunder or under the Notes or in respect of the Letters of Credit. The
Borrowers shall pay directly to all appropriate taxing authorities any and all
present and future Taxes, and all liabilities with respect thereto imposed by
law or by any taxing authority on or with regard to any aspect of the
transactions contemplated by this Agreement or the execution and delivery of
this Agreement or the Notes or the issuance of the Letters of Credit, except for
any Taxes or other liabilities that the Borrowers are contesting in good faith
by appropriate proceedings, provided that the Borrowers, jointly and severally,
--------
hereby indemnify the Administrative Agent and each of the Banks and hold them
harmless from and against any and all liabilities, fees or additional expense
with respect to or resulting from any delay in paying, or omission to pay,
Taxes. Within thirty days after the payment by the Borrowers of any Taxes, the
Borrowers shall furnish the Administrative Agent with the original or a
certified copy of the receipt evidencing payment thereof, together with any
other information the Administrative Agent may reasonably require to establish
to its satisfaction that full and timely payment of such Taxes has been made.
Each Bank shall notify the Borrowers and the Administrative Agent of any payment
of Taxes required or requested of it and shall give due consideration to any
advice or recommendation given in response thereto by the Borrowers, and upon
notice from the Administrative Agent or any Bank that Taxes or any liability
relating thereto (including penalties and interest) have been paid, the
Borrowers shall pay or reimburse the Administrative Agent or the paying Bank
therefor within ten days of such notice. Without prejudice to the survival of
any other agreement of the Borrowers hereunder, the agreements and obligations
of the Borrowers contained in this Section shall survive the payment in full of
principal and interest hereunder and under the Notes.
SECTION 3. INTEREST; PAYMENTS.
------------------
3.1 Interest.
--------
(a) Subject to Section 3.1(c), prior to maturity, LIBOR Loans
shall bear interest at the LIBOR Rate
38
plus the Applicable Margin and Base Rate Loans shall bear interest at the Base
Rate plus the Applicable Margin.
(b) The Applicable Margin shall be determined by the Administrative
Agent quarterly, and upon the making of each Loan in an amount in excess of
$5,000,000, based on the financial statements and the Compliance Certificate
delivered to the Banks pursuant to Sections 7.5(b) and (c) (in the case of a
quarterly determination) and the compliance certificate delivered pursuant to
Section 6.12(b) (in the case of the determination of the Applicable Margin upon
the making of a Loan). Any change in the interest rate on the Loans due to a
change in the Applicable Margin shall be effective on the fifth Banking Day
after delivery of such financial statements or compliance certificate; provided,
--------
however, that if any such quarterly financial statements and Compliance
-------
Certificate indicate an increase in the Applicable Margin and such financial
statements and certificate are not provided within the time period required in
Section 7.5(b), the increase in the interest rate due to such increase in the
Applicable Margin shall be effective retroactively as of the fifth Banking Day
after the date on which such financial statements and certificate were due. The
Borrowers shall deliver to the Banks with each set of quarterly financial
statements which indicate a change in the Applicable Margin a notice with
respect to such change, which notice shall set forth the calculation of, and the
supporting evidence for, such change.
(c) Upon the occurrence of any Event of Default, the entire
outstanding principal amount of each Loan and (to the extent permitted by law)
unpaid interest thereon and all other amounts due hereunder shall bear interest,
from the date of occurrence of such Event of Default until the earlier of the
date such Loan is paid in full and the date on which such Event of Default is
cured or waived in writing, at the Default Interest Rate which shall be payable
upon demand.
(d) Interest shall be computed on a Three Hundred Sixty day year
basis calculated for the actual number of days elapsed. Interest accrued on
each Base Rate Loan shall be paid quarterly in arrears on each Quarterly Date
after the date hereof until such Loan is paid in full and on the date such Loan
is paid in full, and interest accrued on each LIBOR Loan shall be paid on the
last day of the Interest Period thereof and on the date such Loan is paid in
full.
39
(e) The rate of interest payable on any Note from time to time
shall in no event exceed the maximum rate, if any, permissible under applicable
law. If the rate of interest payable on any Note is ever reduced as a result of
the preceding sentence and at any time thereafter the maximum rate permitted by
applicable law shall exceed the rate of interest provided for on such Note, then
the rate provided for on such Note shall be increased to the maximum rate
permitted by applicable law for such period as is required so that the total
amount of interest received by the holder of such Note is that which would have
been received by such holder but for the operation of the preceding sentence.
3.2 Manner of Payments.
------------------
(a) Prior to each Quarterly Date and the end of each Interest
Period, the Administrative Agent shall render a statement to the Borrowers of
all amounts due to the Banks for principal, interest and fees hereunder. All
amounts listed on each such statement shall be due and payable on the Quarterly
Date or, as the case may be, the last day of such Interest Period, in respect of
which such statement was sent. As to all other Obligations which become due and
payable other than on a fixed date by their terms, the Administrative Agent
shall advise the Borrowers by a written statement that they are due and payable,
and the Borrowers shall pay the same within ten days of receipt of such
statement. If any amounts are not paid by the Borrowers when due and payable,
such amounts shall bear interest at the Default Interest Rate, and the Banks may
then charge any account of the Borrowers for such Obligation in the amount due
to the Banks. Any failure by the Administrative Agent to render any such
statement or give any such advice shall in no way relieve the Borrowers of any
liability for or obligation to pay any amount due and payable hereunder.
(b) Whenever any payment to be made hereunder, including without
limitation any payment to be made on a Note, shall be stated to be due on a day
which is not a Banking Day, such payment may be made on the next succeeding
Banking Day, and such extension of time shall in each case be included in the
computation of the interest payable on such Note.
(c) Unless otherwise provided in this Agreement, all payments or
prepayments made or due hereunder or under the Notes shall be made in
immediately available funds by federal funds wire transfer, and without setoff,
deduction or counterclaim, to the Administrative Agent prior
40
to 11:00 A.M., Cleveland time, on the date when due, at its offices at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, or at such other place as may be
designated by the Administrative Agent. Funds received after 11:00 A.M.,
Cleveland time, shall be deemed to have been received on the next Banking Day.
To the extent any such payment is made for the ratable benefit of the Banks, the
Administrative Agent shall promptly distribute such payment to the Banks in
accordance with their respective Ratable Shares.
SECTION 4. CLOSING.
-------
The closing of the transactions contemplated by this Agreement shall
take place at the offices of Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, D.C., on or about July 10, 1998, or such other date
and place as to which the parties may agree (the "Closing" and the "Closing
Date"). Subject to the terms and conditions hereof, upon the fulfillment or
waiver in writing of all the conditions precedent set out in Section 6 below,
and the delivery to the Administrative Agent of the Notes, this Agreement shall
become effective and shall amend and restate in its entirety the Original
Agreement, and all obligations and liabilities of the Borrowers under the
Original Agreement shall be continued and extended as obligations and
liabilities hereunder and shall be evidenced by the Notes. The loans
outstanding under the Original Agreement are being converted into Loans under
this Agreement evidenced by the Notes. The modifications effected by this
Agreement shall not be deemed to provide for or to effect a repayment and re-
advance of any of the Indebtedness to the Banks now outstanding, it being the
intention of the Borrowers, the Administrative Agent and the Banks that the
Indebtedness owing under this Agreement be and is the same Indebtedness as that
owing under the Original Agreement immediately prior to the effectiveness
hereof. The amount of the Indebtedness from time to time owing under this
Agreement which is a continuation of the Indebtedness owing under the Original
Agreement shall be deemed, without further designation, to be allocated pro rata
among the various Notes. Any and all payments or prepayments of the
Indebtedness from time to time owing under this Agreement shall be deemed,
without further designation, to be applied first to amounts hereafter advanced
or re-advanced pursuant to this Agreement and then to the amounts outstanding
under the Original Agreement.
41
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.
------------------------------------------------
To induce the Banks to enter into this Agreement and to make the
Loans, the Borrowers, jointly and severally, represent and warrant as follows:
5.1 Organization and Powers. CCI is a corporation, duly organized,
-----------------------
validly existing and in good standing under the laws of the State of Delaware.
CCI-PR is a corporation, duly organized, validly existing and in good standing
under the laws of Puerto Rico. Each Borrower is duly qualified or registered to
conduct business and in good standing under the laws of each jurisdiction in
which any Tower is located and of each other jurisdiction in which the character
of its business or the ownership of its assets makes such qualification or
registration necessary, except where failure to so qualify or register could not
reasonably be expected to have a Material Adverse Effect. Each Borrower has all
requisite power and authority to own and operate its properties, to carry on its
business as now conducted and proposed to be conducted, to enter into this
Agreement and the Collateral Documents to which it is a party and all other
documents to be executed by it in connection with the transactions contemplated
hereby and thereby and to carry out the terms hereof and thereof.
5.2 Authorization. All necessary corporate, stockholder or other
-------------
actions on the part of the Borrowers and their Subsidiaries to authorize the
execution and delivery of this Agreement and the Collateral Documents, and the
performance of the obligations of the Borrowers and their Subsidiaries herein
and therein, have been taken. This Agreement and each Collateral Document have
been duly authorized and executed and are valid and legally binding upon each of
the Borrowers and their Subsidiaries to the extent it is a party thereto, and
enforceable in accordance with their respective terms, except to the extent that
the enforceability thereof may be limited by bankruptcy, insolvency or like laws
affecting creditors rights generally and the availability of equitable remedies.
5.3 Financial Statements. Exhibit B attached hereto contains (a) the
-------------------- ---------
audited financial statements of Castle Tower Corporation as of December 31,
1996, and for the year then ended, (b) the unaudited combined financial
statements of Castle Tower Corporation, the Borrowers, and the Borrowers'
Subsidiaries, as of September 30, 1997, and for the nine month period then
ended, (c) the unaudited combined financial statements of CCI, Crown Network and
Crown Mobile as of June 30, 1997, and for the six month
42
period then ended, and (d) the audited financial statements of TEA as of
December 31, 1996, and for the year then ended, in each case including a balance
sheet, income statement and statement of cash flows (collectively, the
"Financial Statements"). The Financial Statements are true and complete in all
material respects, disclose all material contingent liabilities and present
fairly the financial condition and results of operations of the Borrowers and
their Subsidiaries as of the dates and for the periods indicated and have been
prepared in accordance with GAAP, subject in the case of statements for interim
periods to normal year-end adjustments and to the absence of footnotes.
5.4 Projections. Exhibit C attached hereto are the Borrowers'
----------- ---------
projections for the calendar years 1998 through 2004. Such projections were
prepared on an operating basis. Such projections represent the Borrowers' best
estimate of projected future operations as of the date of this Agreement. As of
the date hereof, there are no facts which are known to the Borrowers which the
Borrowers believe would cause a material adverse change in such projections.
5.5 Capitalization of Holdco and of the Borrowers. The
---------------------------------------------
capitalization of Holdco and of the Borrowers as of the date hereof is as set
forth on Exhibit D attached hereto. Holdco owns all of the issued and
---------
outstanding capital stock of CCI; CCI owns all of the issued and outstanding
capital stock of CCI-PR, Crown Mobile, Crown Network, Spectrum and TEA; and TEA
owns all of the issued and outstanding capital stock of TeleStructures. All of
the issued and outstanding shares of capital stock of the Borrowers and their
Subsidiaries have been duly and validly issued and are fully paid and
nonassessable. All of the authorized, issued and outstanding shares of capital
stock of the Borrowers and their Subsidiaries are free and clear of any Liens,
except as disclosed on Exhibit D, and except for the Liens in favor of the
---------
Administrative Agent pursuant to the Pledge Agreements. None of such capital
stock has been issued in violation of the Securities Act of 1933, as amended, or
the securities or "Blue Sky" or any other applicable laws, rules or regulations
of any applicable jurisdiction. Except as set forth on Exhibit D, as of the
---------
date hereof, neither Borrower nor any of their Subsidiaries has any commitment
or obligation, either firm or conditional, to issue, deliver, purchase or sell,
under any offer, option agreement, bonus agreement, purchase plan, incentive
plan, compensation plan, warrant, conversion rights, contingent share agreement,
stockholders agreement, partnership agreement or otherwise, any capital stock or
43
other equity securities or securities convertible into shares of capital stock
or other equity securities.
5.6 Subsidiaries. As of the date hereof, CCI-PR has no Subsidiaries.
------------
As of the date hereof, CCI has no Subsidiaries other than the Subsidiaries
listed on Exhibit D attached hereto. Each such Subsidiary is a corporation,
---------
duly organized, validly existing and in good standing under the laws of its
State of incorporation and is duly qualified and in good standing under the laws
of each other jurisdiction in which the character of its business or the
ownership of its assets makes such qualification or registration necessary,
except where failure to so qualify or register could not reasonably be expected
to have a Material Adverse Effect. Each such Subsidiary is a direct or
indirect, wholly owned Subsidiary of CCI. Each such Subsidiary has all
requisite power and authority to own and operate its properties, to carry on its
business as now conducted and proposed to be conducted, to enter into and
perform the Collateral Documents to which it is a party and all other documents
to be executed by it in connection with the transactions contemplated hereby and
thereby and to carry out the terms hereof and thereof.
5.7 Title to Properties; Patents, Trademarks, Etc. Each of the
----------------------------------------------
Borrowers and their Subsidiaries has good and marketable title to all of its
material assets, whether real or personal, tangible or intangible, free and
clear of any Liens or adverse claims or interests, except Permitted Liens. Each
of the Borrowers and their Subsidiaries owns or possesses the valid right to use
all the material patents, patent applications, patent and know-how licenses,
inventions, technology, permits, trademark registrations and applications,
product designs, applications, processes, trademarks, service marks, trade
names, copyrights and licenses and rights in respect of the foregoing used or
necessary for the conduct of its business, without any known conflict with the
rights of others.
5.8 Litigation; Proceedings. Except as disclosed on Exhibit E
----------------------- ---------
attached hereto, there is no action, suit, complaint, proceeding, inquiry or
investigation at law or in equity, or by or before any court or governmental
instrumentality or agency, nor any order, decree or judgment in effect, now
pending or, to the best of the Borrowers' knowledge, threatened against or
affecting either Borrower, any of their Subsidiaries, any Material Towers or any
of the properties or rights relating to any Material Towers, which could
reasonably be expected to have a Material Adverse Effect. Except as disclosed
on Exhibit E hereto, there is no application, petition, complaint, proceeding or
---------
44
investigation pending or, to the best of the Borrowers' knowledge, threatened,
with respect to any License or which could restrict in any material manner the
ownership, operation or license status of any Material Tower.
5.9 Taxes. All Federal, state and local tax returns, reports and
-----
statements (including, without limitation, those relating to income taxes,
withholding, social security and unemployment taxes, sales and use taxes and
franchise taxes) required to be filed by either Borrower or any of their
Subsidiaries have been properly filed with the appropriate governmental agencies
in all jurisdictions in which such returns, reports and statements are required
to be filed, which returns, reports and statements are complete and accurate,
and all taxes and other impositions due and payable have been timely paid prior
to the date on which any fine, penalty, interest, late charge or loss may be
added thereto for non-payment thereof. As of the date hereof, neither Borrower
nor any of their Subsidiaries has filed with the Internal Revenue Service or any
other governmental authority any agreement or other document extending or having
the effect of extending the period for assessment or collection of any Federal,
state, local or foreign taxes or other impositions. All tax deficiencies
asserted or assessments made as a result of any examinations conducted by the
Internal Revenue Service or any other governmental authority relating to either
Borrower or any of their Subsidiaries have been fully paid or are being
contested in accordance with the provisions of Section 7.4. Proper and accurate
amounts have been withheld by the Borrowers and their Subsidiaries from their
employees for all periods to fully comply with the tax, social security and
unemployment withholding provisions of applicable Federal, state, local and
foreign law. The charges, accruals and reserves on the books of the Borrowers
and their Subsidiaries in respect of any taxes or other governmental charges are
adequate.
5.10 Absence of Conflicts. The execution, delivery and performance
--------------------
of this Agreement and the Collateral Documents and all actions and transactions
contemplated hereby and thereby will not (a) violate, be in conflict with,
result in a breach of or constitute (with due notice or lapse of time or both) a
default under (i) any provision of the Certificate of Incorporation or By-laws
of Holdco, either Borrower or any of their Subsidiaries, (ii) any arbitration
award or any order of any court or of any other governmental agency or
authority, (iii) any License relating to any Material Tower or under which
either Borrower or any Subsidiary operates which breach or default of such
License could reasonably be expected to have a
45
Material Adverse Effect, (iv) any applicable law, rule, order or regulation
(including without limitation, (A) the Communications Act of 1934, as amended,
(B) any rule, regulation or policy of the FCC, the FAA or any other Licensing
Authority or (C) Regulations T, U or X of the Board of Governors of the
Federal Reserve System) or (v) the Indenture or any material agreement,
instrument or document relating to any Material Tower or to which Holdco, either
Borrower or any of their Subsidiaries is a party, or by which Holdco, either
Borrower or any of their Subsidiaries or any of their respective properties is
bound, or (b) result in the creation or imposition of any Lien of any nature
whatsoever, other than those Liens arising hereunder or under the Collateral
Documents, upon any of the properties of either Borrower or any Subsidiary.
5.11 Indebtedness. Neither Borrower nor any of their Subsidiaries
------------
has any Indebtedness of any nature, whether due or to become due, absolute,
contingent or otherwise, including Indebtedness for taxes and any interest or
penalties relating thereto, except (a) liabilities reflected in the Financial
Statements, (b) the liability to pay legal and accounting fees and reasonable
closing expenses in connection with this Agreement, (c) liabilities disclosed on
Exhibit F attached hereto and (d) Indebtedness permitted pursuant to Section
---------
8.1.
5.12 Compliance. Except as disclosed on Exhibit E attached hereto,
---------- ---------
neither Borrower nor any of their Subsidiaries nor the construction, ownership
or operation of any Tower is in violation of any provision of the Articles or
Certificate of Incorporation or By-laws of either Borrower or any of their
Subsidiaries or any statute, ordinance, law, rule, regulation or order of the
United States of America, the FCC, the FAA, or any other federal, state, county,
municipal or other governmental agency or authority applicable to it, its
properties, the maintenance of any Material Towers or the conduct of its
business, which violation could reasonably be expected to have a Material
Adverse Effect. Neither Borrower nor any of their Subsidiaries has violated or
breached in any material respect the provisions of any material indenture,
License, agreement, note, lease or other instrument or document to which it is a
party or by which it is bound, nor does there exist any material default, or any
event or condition which, upon notice or lapse of time, or both, would become a
material default, under any such material indenture, License, agreement, note,
lease, or other instrument or document. Each of the Borrowers and their
Subsidiaries has the legal right and authority, including without limitation,
necessary authorizations from the FCC and the FAA, to
46
conduct its business as now conducted or proposed to be conducted.
5.13 Statements Not Misleading. No statement, representation or
-------------------------
warranty made by either Borrower or any of their Subsidiaries or any other party
(other than the Administrative Agent and the Banks) in or pursuant to this
Agreement or the Exhibits attached hereto or any of the Collateral Documents
contains or will contain any untrue statement of a material fact, nor omits or
will omit to state a material fact necessary to make such statement not
misleading or otherwise violates any federal or state securities law, rule or
regulation. There is no fact known to the Borrowers (other than matters of a
general economic nature) that has had or could reasonably be expected to have a
Material Adverse Effect and that has not been disclosed herein.
5.14 Consents or Approvals. No consent, approval or authorization
---------------------
of, or filing, registration or qualification with, any governmental authority or
any other Person (including, without limitation, the FCC, the FAA or any other
Licensing Authority) is required to be obtained by Holdco, either Borrower or
any of their Subsidiaries in connection with the execution, delivery or
performance of this Agreement or any of the Collateral Documents, including,
without limitation, in connection with the granting of liens and security
interests in the capital stock and assets of the Borrowers and their
Subsidiaries, which has not already been obtained or completed, except for the
filing of financing statements and the Mortgages and other actions expressly
required to be taken pursuant to the Collateral Documents.
5.15 Material Contracts and Commitments. Exhibit G attached hereto
---------------------------------- ---------
contains a true and complete description of all material contracts and
commitments of each Borrower and each of their Subsidiaries as of the Closing
Date, whether oral or written, including, without limitation, (a) those
governing any Indebtedness; (b) any security agreement, pledge agreement,
mortgage or guaranty; (c) management, construction supervision, service or
employment agreements, conditional sales contracts or leases of real or personal
property, which involve expenditures in excess of $100,000 in any single case;
(d) collective bargaining agreements; (e) contracts or commitments for the
future purchase or sale of goods, other than those which involve the payment or
receipt of less than $100,000 in any single case; (f) contracts or commitments
which involve a Capital Expenditure in excess of $100,000 in any single case;
(g) bonus, pension, retirement, insurance or other employee
47
benefit plans; (h) all Licenses; (i) all Land Lease Agreements; and (j) all
management agreements. All of the agreements, contracts and commitments listed
on Exhibit G are in full force and effect without material default. Exhibit G
--------- ---------
further identifies each such contract which requires consent to the granting of
a Lien in favor of the Administrative Agent, for the benefit of the Banks, on
the rights of the Borrower or Subsidiary which is a party to such contract. The
Borrowers have made available to the Administrative Agent true and complete
copies of all of the agreements, contracts and commitments listed on Exhibit G.
---------
5.16 Employee Benefit Plans. Exhibit H contains a true and complete
---------------------- ---------
list of all Plans maintained by either Borrower or any member of the Controlled
Group. Neither Borrower nor any member of the Controlled Group has any
liability, or reasonably anticipates any accrued and unpaid liability, of any
kind (including any withdrawal liability under Section 4201 of ERISA) which is
in excess, in the aggregate, of $100,000, to or in respect of any Plan or
Benefit Arrangement. With respect to the Plans and Benefit Arrangements
currently maintained by the Borrowers or any member of the Controlled Group: (a)
each Plan that is intended to be qualified under Code Section 401(a) is so
qualified and has been so qualified since its adoption, and each trust forming a
part thereof is exempt from tax under Code Section 501(a); (b) each Plan
complies in all material respects with all applicable requirements of law, has
been administered in accordance with its terms and all required contributions
have been made; (c) neither Borrower nor any member of the Controlled Group
knows or has reason to know that such Borrower or any member of the Controlled
Group has engaged in a transaction which would subject it to any tax, penalty or
liability under ERISA or the Code for any prohibited transaction; (d) no Plan is
subject to the minimum funding requirements under ERISA Section 302 or Code
Section 412, is a multiemployer plan (as defined in ERISA Section 4001(a)(3)),
is a defined benefit plan (as defined under ERISA Section 3(35) or Code Section
414(j)), or is a multiple employer plan (as defined in ERISA Section 4063). No
Plan or Benefit Arrangement maintained by either Borrower or any member of the
Controlled Group is a multiple employer welfare arrangement (as defined in ERISA
Section 3(40)).
5.17 Licenses. The Licenses shown on Exhibit G constitute all of the
-------- ---------
Licenses which are necessary for the lawful ownership, construction or operation
of any Tower or of the business of either Borrower or of any of their
Subsidiaries in the manner and to the full extent they are currently owned,
constructed and operated. Exhibit G sets forth a correct and complete list of
---------
each pending
48
application for a License filed by either Borrower or any of their Subsidiaries.
All of the Licenses have been duly and validly issued to and are legally held by
the Borrowers and their Subsidiaries and are in full force and effect without
condition except those of general application. The Licenses have been issued in
compliance with all applicable laws and regulations, are legally binding and
enforceable in accordance with their terms and are in good standing. The
Borrowers know of no facts or conditions which would constitute grounds for any
Licensing Authority to deny any pending material application for a License, to
suspend, revoke, materially adversely modify or annul any License or to impose a
material financial penalty on either Borrower or any of their Subsidiaries.
5.18 Material Restrictions. Neither Borrower nor any of their
---------------------
Subsidiaries is a party to any agreement or other instrument or subject to any
other restriction which materially and adversely affects or could materially and
adversely affect its business, property, assets, operations or condition,
financial or otherwise.
5.19 Investment Company Act. Neither Borrower (a) is an investment
----------------------
company as that term is defined in the Investment Company Act of 1940, as
amended, (b) directly or indirectly controls or is controlled by a company which
is an investment company as that term is defined in such act or (c) is otherwise
subject to regulation under such act.
5.20 Absence of Material Adverse Effect. No Material Adverse Effect
----------------------------------
has occurred.
5.21 Defaults. No Possible Default or Event of Default now exists or
--------
will exist upon the making of any Loan.
5.22 Real Property. Exhibit I attached hereto lists as of the
------------- ---------
Closing Date (a) all real estate owned by either Borrower or any of their
Subsidiaries and all leases pursuant to which either Borrower or any of their
Subsidiaries has acquired a leasehold interest in real estate, (b) all such
leases that have been recorded in the real property records of any jurisdiction,
(c) all such owned and leased property for which title insurance or a commitment
for title insurance has been obtained and (d) the use of such owned and leased
property in such Borrower's or Subsidiary's operations and the Borrowers' good
faith estimate of the fair market value of each such owned parcel.
5.23 Securities Laws. No proceeds of any Loan will be used by the
---------------
Borrowers or their Subsidiaries to
49
acquire any security in any transaction which is subject to Section 13 or 14 of
the Securities Exchange Act of 1934, as amended. Neither the registration of any
security under the Securities Act of 1933, as amended, or the securities laws of
any state, nor the qualification of an indenture in respect thereof under the
Trust Indenture Act of 1939, as amended, is required in connection with the
consummation of this Agreement or the execution and delivery of the Notes.
5.24 Insurance. All policies of insurance of any kind or nature
---------
owned by or issued to either Borrower or any of their Subsidiaries, including,
without limitation, policies of fire, theft, public liability, property damage,
other casualty, employee fidelity, worker's compensation, employee health and
welfare, title, property and liability insurance, comply with the requirements
of Section 7.3, are in full force and effect and are of a nature and provide
such coverage as is sufficient and as is customarily carried by companies of the
size and character of such Borrower or Subsidiary and engaged in a similar
business. In the past three years, neither Borrower nor any of their
Subsidiaries has been refused insurance for which it applied or had any policy
of insurance terminated (other than at its request).
5.25 Labor Disputes. There are no strikes, unfair labor practice
--------------
charges or other material labor disputes or grievances pending or, to the best
of the Borrowers' knowledge, threatened against either Borrower or any of their
Subsidiaries. Neither Borrower nor any of their Subsidiaries has received any
written complaints, and has no knowledge of any threatened complaints, nor to
the best of the Borrowers' knowledge are any such complaints on file with any
Federal, state or local governmental agency, alleging employment discrimination
by either Borrower or any of their Subsidiaries. All payments due from either
Borrower or any of their Subsidiaries pursuant to the provisions of any
collective bargaining agreement have been paid or accrued as a liability on the
books of such Borrower or Subsidiary.
5.26 Environmental Compliance.
------------------------
(a) The Borrowers and their Subsidiaries have obtained all
material permits, licenses and other authorizations which are required under all
Environmental Laws, are in material compliance with all terms and conditions of
all such permits, licenses and authorizations, and are also in material
compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or
50
in any regulation, code, plan, order, decree, judgment, injunction, notice or
demand letter issued, entered, promulgated or approved thereunder, including,
without limitation, all Environmental Laws in all jurisdictions in which either
Borrower or any of their Subsidiaries owns, maintains or manages a Tower, a
facility or site, arranges or has arranged for disposal or treatment of
Hazardous Materials, solid waste or other wastes, accepts or has accepted for
transport any Hazardous Materials, solid waste or other wastes or holds or has
held any interest in real property or otherwise.
(b) No Environmental Claim has been issued, no complaint has
been filed, no penalty has been assessed and no litigation, proceeding,
investigation or review is pending or, to the best of the Borrowers' knowledge,
threatened by any Person with respect to any alleged failure by either Borrower
or any of their Subsidiaries to comply with any Environmental Law or to have any
permit, license or authorization required in connection with the conduct of
their respective businesses or with respect to any generation, treatment,
storage, recycling, transportation, use, disposal or Release of any Hazardous
Materials generated by them or with respect to any real property in which either
Borrower or any of their Subsidiaries holds or has held an interest or any past
or present operation of either Borrower or any of their Subsidiaries.
(c) There are no Environmental Laws requiring any material work,
repairs, construction, Capital Expenditures or other remedial work of any nature
whatsoever, with respect to any real property in which either Borrower or any of
their Subsidiaries holds or has held an interest or any past or present
operation of either Borrower or any of their Subsidiaries.
(d) To the best of the Borrowers' knowledge, neither Borrower
nor any of their Subsidiaries has handled any Hazardous Material, on any
property now or previously owned or leased by either Borrower or any of their
Subsidiaries to an extent that it has, or could reasonably be expected to have,
a Material Adverse Effect, and to the best of the Borrowers' knowledge, except
as could not reasonably be expected to have a Material Adverse Effect:
(i) no PCBs are present at any property now or previously
owned or any premises now or previously leased by either Borrower or any of
their Subsidiaries;
(ii) no asbestos is present at any property now or
previously owned or any premises now or
51
previously leased by either Borrower or any of their Subsidiaries;
(iii) no underground storage tanks for Hazardous Materials,
active or abandoned, are now or were previously operated at any property now or
previously owned by either Borrower or any of their Subsidiaries, and, with
respect to premises now or previously leased by either Borrower or any of their
Subsidiaries, no underground storage tanks for Hazardous Materials, active or
abandoned, are now or were previously operated by either Borrower or any of
their Subsidiaries;
(iv) no Hazardous Materials have been Released, in a
reportable quantity, where such a quantity has been established by statute,
ordinance, rule, regulation or order, at, on or under any property now or
previously owned by either Borrower or any of their Subsidiaries; and
(v) no Hazardous Materials have been otherwise Released
at, on or under any property now or previously owned or any premises now or
previously leased by either Borrower or any of their Subsidiaries.
(e) Neither Borrower nor any of their Subsidiaries has
transported or arranged for the transportation of any material amount of
Hazardous Material to any location that is listed on the National Priorities
List ("NPL") under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), listed for possible inclusion on
the NPL by the Environmental Protection Agency in the Comprehensive
Environmental Response and Liability Information System, as provided for by 40
C.F.R. (S)300.5 ("CERCLIS"), or on any similar state or local list or that is
the subject of Federal, state or local enforcement actions or other
investigations that may lead to any material Environmental Claims against either
Borrower or any of their Subsidiaries.
(f) No material amount of Hazardous Material generated by either
Borrower or any of their Subsidiaries has been recycled, treated, stored,
disposed of or Released by either Borrower or any of their Subsidiaries at any
location.
(g) No oral or written notification of a Release of any material
amount of a Hazardous Material has been filed by or on behalf of either Borrower
or any of their Subsidiaries and no property now, or, to the best of the
Borrowers' knowledge, previously, owned or leased by either Borrower or any of
their Subsidiaries is listed or
52
proposed for listing on NPL or on any similar state list of sites requiring
investigation or clean-up.
(h) There are no Liens arising under or pursuant to any
Environmental Laws on any of the property owned or premises leased by either
Borrower or any of their Subsidiaries, and no government actions have been taken
or are in process which could subject any of such property to such Liens, and
neither Borrower nor any of their Subsidiaries would be required to place any
notice or restriction relating to the presence of Hazardous Materials at any
property owned by it in any deed to such property.
(i) Neither Borrower nor any of their Subsidiaries has retained
or assumed any liabilities (contingent or otherwise) in respect of any
Environmental Claims (i) under the terms of any contract or agreement or (ii) by
operation of law as a result of merger, consolidation or the sale, exchange or
contribution of assets or stock.
(j) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by or which are in the
possession of either Borrower or any of their Subsidiaries in relation to any
property or facility now or previously owned or leased by either Borrower or any
of their Subsidiaries which have not been disclosed in writing and made
available to the Banks.
5.27 Solvency. Each Borrower has received, or has the right
--------
hereunder to receive, consideration which is the reasonably equivalent value of
the obligations and liabilities that such Borrower has incurred to the Banks.
Neither Borrower is insolvent as defined in Section 101 of Title 11 of the
United States Code or any applicable state insolvency statute, nor, after giving
effect to the consummation of the transactions contemplated herein, will such
Borrower be rendered insolvent by the execution and delivery of this Agreement,
the Notes or the Collateral Documents to the Banks. Neither Borrower is
engaged, and neither Borrower is about to engage, in any business or transaction
for which the assets retained by it shall be an unreasonably small capital,
taking into consideration the obligations to the Banks incurred hereunder.
Neither Borrower intends to, and neither Borrower believes that it will, incur
debts beyond its ability to pay them as they mature.
53
5.28 Indenture and Offering Memorandum.
---------------------------------
(a) The Borrowers have provided to the Administrative Agent a
complete and correct copy of the Indenture and the notes and other agreements
and documents executed and delivered pursuant thereto. All of the
representations and warranties of Holdco in the Indenture are true and correct
in all material respects as of the date hereof as if given as of the date
hereof, and will be true and correct in all material respects as of the Closing
Date as if given as of such date, and no default or event of default exists
thereunder or will exist after giving effect to the making of any Loan or the
issuance of any Letter of Credit hereunder. The Indenture has not been amended
or modified, and no provisions thereof have been waived. The making of any Loan
hereunder does not and will not constitute a default under the Indenture.
(b) The Borrowers have provided to the Administrative Agent
complete and correct copies of the Offering Memorandum relating to the notes
issued by Holdco pursuant to the Indenture. No statement, representation or
warranty made in the Offering Memorandum contains any untrue statement of a
material fact, nor omits to state a material fact necessary to make such
statement not misleading in light of the circumstances under which such
statement was made, or otherwise violates any federal or state securities laws,
rules or regulations.
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BANKS.
------------------------------------------------
The obligations of the Banks to make the initial Loans on the Closing
Date, to issue any Letter of Credit and to make any subsequent Loan are subject
to the fulfillment or waiver in writing of each of the following conditions
precedent. The Borrowers shall deliver to the Administrative Agent copies for
each Bank of each document, instrument or other item to be delivered pursuant to
this Section 6.
6.1 Compliance. All of the representations and warranties of the
----------
Borrowers and their Subsidiaries herein and in the Collateral Documents shall be
true in all material respects on and as of the Closing Date, the date of
issuance of any Letter of Credit and the date of any subsequent Loan (other than
a Loan resulting from the funding of a Letter of Credit), as if made on and as
of such date, both before and after giving effect to the making of the proposed
loan or the issuance of the proposed Letter of Credit, except to the extent that
any thereof expressly
54
relate to an earlier date, in which case such representations and warranties
shall have been true in all material respects as of such earlier date. The
Borrowers and their Subsidiaries shall have performed and be in compliance with
all the provisions of this Agreement and each Collateral Document, and no
Possible Default or Event of Default shall have occurred and be continuing, on
and as of the Closing Date and the date of any subsequent Loan (other than a
Loan resulting from the funding of a Letter of Credit) or the issuance of a
Letter of Credit, before and after giving effect to the making of the proposed
Loan or the issuance of the proposed Letter of Credit. On the Closing Date and
on the date of each subsequent Loan (other than a Loan resulting from the
funding of a Letter of Credit) and the date of issuance of any Letter of Credit,
the Borrowers shall deliver to the Banks a certificate, dated as of such date,
and signed by the President or the chief financial officer of each Borrower,
certifying compliance with the conditions of this Section 6.1. Each request by
the Borrowers for a Loan shall, in and of itself, constitute a representation
and warranty that the Borrowers, as of the date of such Loan, are in compliance
with this Section.
6.2 Security Agreements.
-------------------
(a) The Borrowers shall have executed and delivered to the
Administrative Agent an Amended and Restated Security Agreement in form and
substance satisfactory to the Administrative Agent (the "Borrowers Security
Agreement"), which amends and restates the security agreement entered into among
the Borrowers and the Administrative Agent pursuant to the Original Agreement;
and the Borrowers Security Agreement, and the security interests granted
pursuant thereto, shall be in full force and effect.
(b) Each Subsidiary of the Borrowers shall have executed and
delivered to the Administrative Agent a Security Agreement in form and substance
satisfactory to the Administrative Agent (the "Subsidiary Security Agreement"),
granting to the Administrative Agent, for the benefit of the Banks, a perfected
first priority security interest in substantially all of such Subsidiary's
personal property; and the Subsidiary Security Agreement, and the security
interests granted pursuant thereto, shall be in full force and effect.
6.3 Pledge Agreements.
-----------------
(a) Holdco shall have executed and delivered to the
Administrative Agent a Pledge Agreement (the "Holdco
55
Pledge Agreement"), in form and substance satisfactory to the Administrative
Agent, granting to the Administrative Agent, for the benefit of the Banks, a
perfected, first priority security interest in all of the issued and outstanding
shares of capital stock of CCI; and Holdco shall have delivered to the
Administrative Agent stock certificates evidencing all of such shares and duly
executed blank stock powers in respect thereof and shall have taken all other
actions as may be required to effect the grant and perfection of the
Administrative Agent's security interest in such stock; and the Holdco Pledge
Agreement, and the security interests granted pursuant thereto, shall be in full
force and effect.
(b) CCI shall have executed and delivered to the Administrative
Agent a Pledge Agreement in form and substance satisfactory to the
Administrative Agent (the "CCI Pledge Agreement"), granting to the
Administrative Agent, for the benefit of the Banks, a perfected first priority
security interest in all of the issued and outstanding capital stock of
Spectrum, Crown Network, Crown Mobile, TEA, CCI-PR and each of CCI's other
direct Subsidiaries; CCI shall have delivered to the Administrative Agent stock
certificates evidencing all of such capital stock and duly executed blank stock
powers in respect thereof and shall have taken all actions as may be required to
effect the grant and perfection of the Administrative Agent's security interest
in such stock; and the CCI Pledge Agreement, and the security interests granted
pursuant thereto, shall be in full force and effect.
(c) Each Subsidiary of a Borrower which has a Subsidiary shall
have executed and delivered to the Administrative Agent a Pledge Agreement in
form and substance satisfactory to the Administrative Agent (the "Subsidiary
Pledge Agreement"), granting to the Administrative Agent, for the benefit of the
Banks, a perfected first priority security interest in all of the issued and
outstanding capital stock of each Subsidiary owned by such Subsidiary; each such
Subsidiary shall have delivered to the Administrative Agent stock certificates
evidencing all of such capital stock and duly endorsed blank stock powers with
respect thereto; each such Subsidiary shall have taken all actions as may be
required to effect the grant and perfection of the Administrative Agent's
security interest in such capital stock; and the Subsidiary Pledge Agreement,
and the security interests granted pursuant thereto, shall be in full force and
effect.
56
6.4 Real Property Matters.
---------------------
(a) Mortgages. With respect to each parcel of real property
---------
owned by either of the Borrowers or any of their Subsidiaries, to the extent
requested by the Administrative Agent, such Borrower or Subsidiary shall (on or
prior to the Closing Date with respect to real property owned or to be acquired
as of the Closing Date and, with respect to real property thereafter acquired,
promptly after acquisition thereof) have executed and delivered a first priority
mortgage or deed of trust (or an amendment to, or amendment and restatement of,
any mortgage or deed of trust granted pursuant to the Original Agreement), in
form and substance satisfactory to the Administrative Agent, covering such
parcel of real property. With respect to each parcel of real property leased by
either Borrower or any of their Subsidiaries, to the extent requested by the
Administrative Agent, such Borrower or Subsidiary shall (on or prior to the
Closing Date with respect to leases held or to be acquired as of the Closing
Date and, with respect to leases thereafter acquired, promptly after acquisition
thereof) have executed and delivered a first priority leasehold mortgage or
collateral assignment of lease (or an amendment to, or an amendment and
restatement of, any leasehold mortgage or collateral assignment of lease granted
pursuant to the Original Agreement), in form and substance satisfactory to the
Administrative Agent, covering such leasehold interest. Such mortgages, deeds of
trust, leasehold mortgages and collateral assignments of leases (including any
amendments thereto) may be referred to hereinafter collectively as the
"Mortgages". As of the Closing Date and the date of making any subsequent Loan,
Mortgages covering those parcels of owned or leased real property that have
either generated on a pro forma basis in the aggregate at least 75% of the gross
revenues of the Borrowers and their Subsidiaries for the twelve month period
most recently ended prior to the date of such Loan or that individually have
generated on a pro forma basis in such period at least $50,000 of revenues shall
have been duly recorded, and the Borrowers shall have paid all taxes, fees or
charges incurred in connection with the execution or recording thereof;
provided, however, that the Borrowers shall not be required to record any such
-------- -------
Mortgage in respect of any parcel of land owned by the Government of the United
States or any agency thereof to the extent the recording of such Mortgage would
not be permitted by law. All other Mortgages shall have been delivered to the
Administrative Agent in recordable form. The Administrative Agent shall have
the right (but shall not be obligated) to file any or all of such other
Mortgages at any time after the occurrence of a Possible Default.
57
(b) Title Insurance.
---------------
(i) On or prior to the date of any Loan, except as provided
in the following sentence, the Borrowers shall have procured and delivered to
the Administrative Agent commitments for ALTA mortgagee's policies of title
insurance covering those parcels of owned or leased real property that are
subject to Mortgages that have been duly recorded pursuant to Section 6.4(a) and
that have either generated on a pro forma basis in the aggregate at least 50% of
the gross revenues of the Borrowers and their Subsidiaries for the twelve month
period most recently ended prior to the date of such Loan or that individually
have generated on a pro forma basis in such period at least $100,000 of
revenues. If the Borrowers have previously delivered to the Administrative Agent
a title insurance policy in respect of any such Mortgage pursuant to the
Original Agreement, the Borrower may deliver to the Administrative Agent an
endorsement to such policy of title insurance reflecting any amendment provided
pursuant to Section 6.4(a) and otherwise in form and substance satisfactory to
the Administrative Agent.
(ii) Each title insurance policy required pursuant to this
Section 6.4(b) shall (A) be issued by a title insurance company satisfactory to
the Administrative Agent, (B) be for the benefit of the Administrative Agent on
behalf of the Banks, (C) be on Form 1970 if available, or 1984 or 1990 with 1970
Endorsement or state equivalent, (D) be reasonably satisfactory to the
Administrative Agent, (E) insure that such Mortgages are valid first mortgage
liens on the property covered thereby, and (F) to the extent available and
appropriate: (I) insure title to the real property and all recorded easements
benefitting such real property, (II) contain a commercial revolving line of
credit endorsement insuring that advances made subsequent to the date of the
title insurance policy are included in the title coverage, not to exceed the
face amount of the title policy, (III) contain a last dollar endorsement
insuring that the Banks may apply all payments from the Borrowers to the release
of security or collateral other than the real property until the aggregate
outstanding indebtedness equals the face amount of the title insurance policy
and (IV) contain a first loss endorsement insuring that the Administrative Agent
may realize upon the real property without requiring maturity of the entire
indebtedness by acceleration and regardless of the existence of, and without
pursuing, other security or collateral. No title indemnities shall be
established in connection with the issuance of the aforesaid lender's title
insurance policy.
58
(c) Flood Zone Certificates. With respect to each parcel of real
-----------------------
property owned by either Borrower or any of their Subsidiaries which is subject
to a Mortgage, the Borrowers shall have procured and delivered to the
Administrative Agent evidence as to whether such parcel of property is located
within a flood hazard area for purposes of the National Flood Insurance Act of
1968, as amended.
(d) Landlord Consents. The Borrowers shall have used their best
-----------------
efforts to obtain from each lessor under a lease, in respect of which lease
either Borrower or any of their Subsidiaries has granted to the Administrative
Agent, for the benefit of the Banks, a Mortgage, written consent to such grant
in form and substance satisfactory to the Administrative Agent, to the extent
such lease requires such consent.
(e) Environmental Studies. The Borrowers shall have provided to
---------------------
the Administrative Agent, with respect to each parcel of real estate which is
subject to a Mortgage that, pursuant to Section 6.4(a) is required to be
recorded, copies of (i) either a Phase I Environmental Assessment conducted by
qualified personnel conducting assessments consistent with American Society of
Testing Materials ("ASTM") standard practice for environmental site assessments
E1527-94 (with additional Phase II Environmental Assessments if real or
potential environmental concerns are identified in the Phase I Reports) or an
Environmental Transaction Screen conducted by qualified personnel consistent
with ASTM standard transaction screen (Section 5.1 through Section 6.1)
including: (A) evaluation of the Sanborns Historical Reviews of previous uses of
property where available; (B) interviews with property owners and key site
managers regarding the potential for environmental contamination at the sites;
and (C) recommendations as to further investigation, if necessary, to evaluate
whether additional Phase I and/or Phase II testing is necessary, which reports
shall in either case, be satisfactory to the Administrative Agent, conducted by
a company acceptable to the Administrative Agent, (ii) to the extent available,
all environmental surveys or audits performed during the past five years in
connection with each of the parcels of real estate which is subject to a
Mortgage, and the results of any existing search of the public records of the
authorities in the relevant jurisdictions responsible for environmental matters
with respect to any proceeding or action affecting any parcel of real estate
which is subject to a Mortgage and (iii) such other evidence concerning
compliance (both past and present) with Environmental Laws by the Borrowers and
their Subsidiaries as the Administrative Agent may request.
59
(f) Surveys. The Borrowers shall have provided to the
-------
Administrative Agent copies of any surveys in their possession or reasonably
available to them of any parcel of real estate which is subject to a Mortgage.
6.5 Financing Statements. Any financing statements or fixture
--------------------
filings required by the Security Agreements, the Mortgages or any other
Collateral Documents shall have been filed for record with the appropriate
governmental authorities.
6.6 Guaranties.
----------
(a) Holdco shall have executed and delivered to the
Administrative Agent, for the benefit of the Banks, an amended and restated
limited guaranty (the "Holdco Guaranty"), in form and substance satisfactory to
the Administrative Agent, of all of the Borrowers' Obligations hereunder, under
the Notes and under each Collateral Document, with the recourse of the
Administrative Agent under such guaranty being limited to the collateral pledged
to the Administrative Agent for the benefit of the Banks, pursuant to the Holdco
Pledge Agreement.
(b) Each Subsidiary of a Borrower shall have executed and
delivered to the Administrative Agent, for the benefit of the Banks, a guaranty
(the "Subsidiary Guaranty"), in form and substance satisfactory to the
Administrative Agent, of all of the Borrowers' Obligations hereunder, under the
Notes and under each Collateral Document.
6.7 Holdco Subordination Agreement. Holdco shall have executed and
------------------------------
delivered to the Administrative Agent, for the benefit of the Banks, a
subordination agreement (the "Holdco Subordination Agreement"), in form and
substance satisfactory to the Administrative Agent, pursuant to which all
obligations of the Borrowers to Holdco are subordinated to the Obligations.
6.8 Consummation of Holdco Financing and Reorganization.
---------------------------------------------------
(a) The Borrowers shall have delivered to the Administrative
Agent certified copies of the Offering Memorandum, the Indenture and the notes
issued pursuant thereto. The notes issued under the Indenture shall have been
issued, with total gross proceeds to Holdco of at least $150,000,000, and at
least $100,000,000 of the proceeds of the offering of such notes shall have been
contributed to the capital of CCI and used to pay in full all amounts
60
outstanding under the Original Agreement and all other Indebtedness for borrowed
money of either Borrower or any of their Subsidiaries.
(b) All of the issued and outstanding capital stock of TEA,
Crown Network and Crown Mobile shall have been contributed to the capital of CCI
so that such companies are wholly owned Subsidiaries of CCI, and all of the
issued and outstanding capital stock of TeleStructures shall have been
contributed to the capital of TEA so that TeleStructures is a wholly owned
Subsidiary of TEA, in each case pursuant to documentation reasonably acceptable
to the Administrative Agent.
6.9 No Indebtedness. The Administrative Agent shall have received
---------------
evidence satisfactory to it that the Borrowers and their Subsidiaries have no
Indebtedness to Holdco or any Affiliate of Holdco, other than to another
Borrower, to a Subsidiary of a Borrower or to Holdco in an amount not to exceed
$5,000,000, which amount is subject to the Holdco Subordination Agreement.
6.10 Opinion of Counsel. On the Closing Date, the Administrative
------------------
Agent shall have received the favorable written opinions of counsel to Holdco,
the Borrowers and their Subsidiaries in Texas, Pennsylvania, New Mexico, and
Puerto Rico, and of FCC counsel to the Borrowers and their Subsidiaries, in each
case dated the Closing Date, addressed to the Banks and in form and substance
satisfactory to the Administrative Agent.
6.11 Insurance Certificates. The Borrowers shall have furnished to
----------------------
the Administrative Agent on or prior to the Closing Date certificates of
insurance (together with, if requested by the Administrative Agent, copies of
all policies referred to in such certificates) or other satisfactory evidence
that the insurance required by Section 7.3 is in full force and effect.
6.12 Financial Information.
---------------------
(a) On the Closing Date, the Borrowers shall have delivered to
the Administrative Agent a pro forma balance sheet and income statement as of
December 31, 1997, giving effect to the closing hereunder.
(b) On, or one Banking Day prior to, the date of each borrowing
hereunder of $5,000,000 or more, the date of each issuance of a Letter of Credit
with a stated amount of $5,000,000 or more, and, to the extent requested by the
Administrative Agent, the date of any other borrowing
61
hereunder or issuance of a Letter of Credit, the Borrowers shall have delivered
to the Administrative Agent a pro forma compliance certificate in form and
substance satisfactory to the Administrative Agent showing the Leverage Ratio as
the date of such borrowing or issuance of a Letter of Credit and the Borrowers'
compliance on a pro forma basis with the financial covenants set forth in
Section 8.
6.13 Borrowing Request and Statement of Application of Proceeds. The
----------------------------------------------------------
Borrowers shall have delivered to the Administrative Agent in respect of each
Loan a borrowing request, in form and substance satisfactory to the
Administrative Agent, setting forth the application of the proceeds of the
requested Loan, evidence that such application is permitted pursuant to Sections
2 and 7.1, the recipient of such proceeds and wire transfer instructions.
6.14 Corporate Documents. On the Closing Date, the Borrowers shall
-------------------
have delivered to the Administrative Agent the following:
(a) certificates of good standing for Holdco and each of the
Borrowers and their Subsidiaries from the Secretary of State (or other
appropriate governmental body) of their respective jurisdictions of
incorporation and, to the extent requested by the Administrative Agent, from
each other jurisdiction in which any of them is qualified to do business, in
each case dated as of a date as near to the Closing Date as practicable;
(b) a certificate signed by the Secretary or Assistant
Secretary of each Borrower dated as of the Closing Date certifying that attached
thereto are true and complete copies of (i) the Certificate or Articles of
Incorporation and By-Laws of such Borrower, (ii) the Certificate of
Incorporation and By-Laws of Holdco, (iii) the Certificate or Articles of
Incorporation and By-Laws of each of their Subsidiaries, and (iv) resolutions
adopted by the respective Boards of Directors of Holdco, the Borrowers and their
Subsidiaries authorizing the execution, delivery and performance of this
Agreement and the Collateral Documents and the Obligations to be performed by
such parties hereunder and thereunder;
(c) an incumbency certificate for Holdco, each Borrower and
each of their Subsidiaries; and
(d) such other documents as any Bank may reasonably request in
connection with the proceedings taken by Holdco, the Borrowers or any of their
Subsidiaries authorizing this Agreement, the Collateral Documents and the
62
transactions contemplated hereby, to the extent it is a party thereto.
6.15 Lien Searches, Consents and Releases of Liens. The
---------------------------------------------
Administrative Agent shall have received: (a) on the Closing Date, certified
copies of UCC, judgment and tax lien search reports for those jurisdictions in
which are located towers or other income producing property of either Borrower
or any of their Subsidiaries that have either generated on a pro forma basis in
the aggregate at least 50% of the gross revenues of the Borrowers and their
Subsidiaries for the twelve month period most recently ended prior to the
Closing Date or that individually have generated on a pro forma basis in such
period at least $100,000 of revenues, listing all effective financing statements
and other Liens on any of the property of such Borrower or Subsidiary in such
jurisdictions, (b) on the date of any subsequent Loan the proceeds of which are
being used to acquire towers or other income producing property, certified
copies of UCC, judgment and tax lien search reports for those jurisdictions in
which are located such towers or other income producing property that have
either generated on a pro forma basis in the aggregate at least 50% of the gross
revenues of all such towers and other income producing property being acquired
for the twelve month period most recently ended prior to date of making such
Loan or that individually have generated on a pro forma basis in such period at
least $100,000 of revenues, listing all effective financing statements and other
Liens on any of the property of such Borrower or Subsidiary (including such
acquired property) in such jurisdictions, (c) on the Closing Date and the date
of any subsequent Loan, consents to the granting of Liens in all material
contracts and leases of the Borrowers and each of their Subsidiaries, which by
their terms require such consent, and (d) on the Closing Date and the date of
any subsequent Loan, releases of any existing Liens encumbering any assets of
either Borrower or any of their Subsidiaries, except for Permitted Liens.
6.16 No Order, Judgment, Decree or Litigation. No order, judgment or
----------------------------------------
decree of any court, arbitrator or governmental authority shall purport to
enjoin or restrain the Banks from making the Loans. No action, suit, complaint,
proceeding, inquiry or investigation at law or in equity, or by or before any
court or governmental instrumentality or agency, nor any order (including,
without limitation, any order to show cause or order of forfeiture), decree or
judgment in effect, pending or threatened against or affecting either Borrower,
any Subsidiary, any Tower or any of the properties or rights relating to any
Tower shall
63
exist which could reasonably be expected to have a Material Adverse Effect.
6.17 No Material Adverse Effect. There shall have occurred no
--------------------------
Material Adverse Effect since December 31, 1996.
6.18 Fee Letter; Fees and Expenses. The Borrowers shall have paid
-----------------------------
all commitment fees accrued under the Original Agreement through the Closing
Date, and the Borrowers shall have paid all fees, expenses and other amounts due
pursuant hereto and pursuant to the Fee Letter on or prior to the date of such
initial or subsequent Loan.
6.19 Legal Approval. All legal matters incident to this Agreement
--------------
and the consummation of the transactions contemplated hereby shall be reasonably
satisfactory to Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC, special counsel to the
Administrative Agent.
6.20 Other Documents. The Administrative Agent shall have received
---------------
all Collateral Documents duly executed, and each Bank shall have received such
other certificates, opinions, agreements and documents, in form and substance
satisfactory to it, as it may reasonably request.
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWERS.
--------------------------------------
So long as this Agreement remains in effect or any of the Obligations
remains unpaid or to be performed, or any Letter of Credit remains outstanding,
the Borrowers shall, and shall cause their Subsidiaries to, perform and comply
with the affirmative covenants contained in this Section.
7.1 Use of Proceeds. The Borrowers shall use the proceeds of the
---------------
Reducing Loans only as follows: (a) for Qualified Acquisitions; (b) for Capital
Expenditures to the extent permitted pursuant to Section 8.7; (c) for the
construction of communications tower facilities; (d) for fees and transaction
costs associated with this Agreement and Qualified Acquisitions; and (e) for
general corporate purposes.
7.2 Continued Existence; Compliance with Law. Each Borrower shall,
----------------------------------------
and shall cause its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its existence and its
material rights, Licenses and Land Lease Agreements. Without limiting the
generality of the foregoing, each Borrower shall, and shall cause each of its
Subsidiaries to,
64
obtain and maintain and preserve in full force and effect any and all material
Licenses and Land Lease Agreements and other material contracts necessary to
maintain, operate and manage the Towers, not breach or violate the same, and
take all actions which may be required to comply in all material respects with
all laws, statutes, rules, regulations, orders and decrees now in effect or
hereafter promulgated by any governmental authority. The Borrowers shall obtain,
renew and extend all of the foregoing rights, franchises, permits, Licenses,
Land Lease Agreements and the like which may be necessary for the continuance of
the operation, maintenance and management of the Towers.
7.3 Insurance. The Borrowers shall, and shall cause their
---------
Subsidiaries to, keep their insurable properties insured to the full replacement
cost thereof at all times by financially sound and reputable insurers acceptable
to the Administrative Agent, and maintain such other insurance, to such extent
and against such risks, including fire, lightning, vandalism, malicious
mischief, flood (if the Borrower's property is located in an identified flood
hazard area, in which insurance has been made available pursuant to the National
Flood Insurance Act of 1968) and other risks insured against by extended
coverage, as is customary with companies engaged in the same or similar business
similarly situated. All such insurance shall be in amounts sufficient to
prevent either Borrower or any of their Subsidiaries from becoming a coinsurer,
shall name the Administrative Agent, for the benefit of the Banks, as loss payee
and may contain loss deductible provisions of not to exceed $25,000. The
Borrowers shall, and shall cause their Subsidiaries to, maintain in full force
and effect liability insurance and general accident and public liability
insurance against claims for personal or bodily injury, death or property damage
occurring upon, in, about or in connection with the use or operation of any
property or motor vehicles owned, occupied, controlled or used by either
Borrower or any of their Subsidiaries and their employees or agents, or arising
in any other manner out of the business conducted by the Borrowers and their
Subsidiaries. The Borrowers shall maintain business interruption insurance in
form and amount satisfactory to the Administrative Agent. All of such insurance
shall be in amounts reasonably satisfactory to the Administrative Agent and
shall be obtained and maintained by means of policies with generally recognized,
responsible insurance companies authorized to do business in such states as may
be necessary depending upon the locations of the Borrowers' and their
Subsidiaries' assets and shall name the Administrative Agent,for the benefit of
the Banks, as an additional insured or loss payee, as the case may be. The
insurance to be provided may be blanket policies. Each
65
policy of insurance shall be written so as not to be subject to cancellation or
substantial modification without not less than thirty days advance written
notice to the Administrative Agent. The Borrowers shall furnish the
Administrative Agent annually with certificates or other evidence satisfactory
to the Administrative Agent that the insurance required hereby has been obtained
and is in full force and effect and, prior to the expiration of any such
insurance, the Borrowers shall furnish the Administrative Agent with evidence
satisfactory to the Administrative Agent that such insurance has been renewed or
replaced. The Borrowers shall, upon request of the Administrative Agent, furnish
the Administrative Agent such information about the Borrowers' and their
Subsidiaries' insurance as the Administrative Agent may from time to time
reasonably request.
7.4 Obligations and Taxes. The Borrowers shall, and shall cause
---------------------
their Subsidiaries to, pay or perform all of their respective material
Indebtedness and other material liabilities and obligations in a timely manner
in accordance with normal business practices and with the terms governing the
same. The Borrowers shall, and shall cause their Subsidiaries to, comply with
the terms and covenants of all material agreements and all material leases of
real or personal property, including, without limitation, the Land Lease
Agreements. The Borrowers shall, and shall cause their Subsidiaries to, pay and
discharge promptly all taxes, assessments and governmental charges or levies
imposed upon them or in respect of their property before the imposition of any
penalty, as well as all lawful claims for labor, materials, supplies or other
matters which, if unpaid, might become a Lien or charge upon such properties or
any part thereof; provided, however, that the Borrowers and their Subsidiaries
-------- -------
shall not be required to pay and discharge or cause to be paid and discharged
any such tax, assessment, charge, levy or claim so long as (a) the validity
thereof is being contested diligently and in good faith by appropriate
proceedings and the enforcement thereof is stayed, pending the outcome of such
proceedings, (b) the affected Borrower or Subsidiary has set aside on its books
adequate reserves (to the extent required by GAAP or sound business practice)
with respect thereto, and (c) such contest will not endanger the Lien of the
Administrative Agent or the Banks in any of such Borrower's or Subsidiary's
assets.
7.5 Financial Statements and Reports. The Borrowers shall maintain
--------------------------------
true and complete books and records of account in accordance with GAAP. The
Borrowers shall furnish to the Administrative Agent, for delivery to the
66
Banks, the following financial statements, projections and notices at the
following times:
(a) As soon as available, but in no event later than ninety days
after the end of each fiscal year of the Borrowers, the Borrowers shall furnish
(i) audited consolidated financial statements, including a consolidated balance
sheet and consolidated income statement, showing the financial condition of CCI
and its Subsidiaries as of the close of such fiscal year and the results of
their operations during such fiscal year, together with a statement of cash
flows of CCI and its Subsidiaries and additional statements, schedules and
footnotes as are customary in a complete accountant's report; such financial
statements shall set forth, in comparative form, corresponding figures for the
prior year and shall be certified by nationally recognized independent certified
public accountants selected by CCI and acceptable to the Administrative Agent
and accompanied by the management letter of such accountants to CCI, and the
opinion of such accountants shall be unqualified and in a form reasonably
satisfactory to the Administrative Agent; and (ii) a statement signed by such
accountants to the effect that in connection with their examination of such
financial statements they have reviewed the provisions of this Agreement and
have no knowledge of any event or condition which constitutes an Event of
Default or Possible Default or, if they have such knowledge, specifying the
nature and period of existence thereof; provided, however, that in issuing such
-------- -------
statement, such independent accountants shall not be required to go beyond
normal auditing procedures conducted in connection with their opinion referred
to above;
(b) As soon as available, but in no event later than forty-five
days after the end of each quarter of the Borrowers, the Borrowers shall furnish
(i) unaudited consolidated and consolidating financial statements, including
consolidated and consolidating balance sheets and income statements of CCI and
its Subsidiaries, showing the financial condition of CCI and its Subsidiaries as
of the end of such period and the results of their operations during such period
and for the then elapsed portion of the fiscal year, which shall be accompanied
by a statement of cash flows of CCI and its Subsidiaries for such periods, (ii)
to the extent requested by the Administrative Agent, an unaudited statement of
income and expense for each Tower for such quarter and the then elapsed portion
of the fiscal year as the Administrative Agent may reasonably request, and (iii)
a statement showing Capital Expenditures (including a comparison to Capital
Expenditures budgeted for such period)
67
and income taxes paid, each for such period; all such financial statements shall
set forth, in comparative form, corresponding figures for the equivalent period
of the prior year and a comparison to budget for the relevant period, shall be
in form and detail satisfactory to the Administrative Agent, and shall be
certified as to accuracy and completeness by the chief financial officer of CCI;
(c) The financial statements required under (a) and (b) above,
shall be accompanied by a compliance certificate in the form attached hereto as
Exhibit J executed by CCI's chief financial officer setting forth the
---------
computations showing compliance with the financial covenants set forth in
Section 8, and certifying that no Possible Default or Event of Default has
occurred, or if any Event of Default or Possible Default has occurred, stating
the nature thereof and the actions the Borrowers intend to take in connection
therewith;
(d) The Borrowers shall deliver (i) within forty-five days after
the end of each fiscal year, an annual operating budget for the then current
fiscal year, (ii) promptly upon preparation thereof, any material revisions of
such annual budget and (iii) after each monthly period in which there is a
material adverse deviation from budget a certificate of CCI's chief financial
officer explaining the deviation and the action, if any, the Borrowers have
taken or propose to take with respect thereto;
(e) The Borrowers shall furnish (i) upon request, promptly after
the filing thereof with the Internal Revenue Service, copies of each annual
report with respect to each Plan established or maintained by either Borrower or
any member of the Controlled Group for each plan year, including (A) where
required by law, a statement of assets and liabilities of such Plan as of the
end of such plan year and statements of changes in fund balance and in financial
position, or a statement of changes in net assets available for plan benefits,
for such plan year, certified by an independent public accountant satisfactory
to the Administrative Agent, and (B) if prepared by or available to the
Borrowers, an actuarial statement of such Plan applicable to such plan year,
certified by an enrolled actuary of recognized standing acceptable to the
Administrative Agent; and (ii) promptly after receipt thereof, a copy of any
notice either Borrower or a member of the Controlled Group may receive from the
Department of Labor or the Internal Revenue Service with respect to any Plan
(other than notices of general application) which could result in a material
liability to either Borrower; the Borrowers will promptly notify the
Administrative Agent of
68
any material taxes assessed, proposed to be assessed or which the Borrowers have
reason to believe may be assessed against either Borrower or any member of the
Controlled Group by the Internal Revenue Service with respect to any Plan or
Benefit Arrangement; and
(f) Upon the Administrative Agent's written request, such other
information about the financial condition, properties and operations of the
Borrowers and their Subsidiaries as any Bank may from time to time reasonably
request.
7.6 Notices. The Borrowers shall give the Administrative Agent, for
-------
distribution to the Banks, notice (i) promptly after their receipt of notice
thereof, of any action, suit or proceeding by or against either Borrower or any
of their Subsidiaries at law or in equity, or before any governmental
instrumentality or agency, or of any of the same which may be threatened, which,
if adversely determined, could have a Material Adverse Effect, including,
without limitation, any citation or order by the FCC, any other Licensing
Authority or any admonition, censure or adverse citation from the FAA or any
other regulatory agency, (ii) within three days after their receipt of notice
thereof, of any action or event constituting an event of default or violation of
any License, Land Lease Agreement or other material contract to which either
Borrower or any of their Subsidiaries is a party or by which either Borrower or
any of their Subsidiaries is bound, or any investigation, assertion, claim or
challenge relating thereto, in either case which could reasonably be expected to
have a Material Adverse Effect, (iii) within three days after the occurrence
thereof, of any Possible Default or Event of Default and the actions the
Borrowers intend to take in connection therewith, (iv) within five days after
their receipt of notice thereof, of any cancellation of or any material
amendment to any of the insurance policies maintained in accordance with the
requirements of this Agreement, except for cancellations and amendments that
occur in the ordinary course of business, (v) promptly after the occurrence
thereof, of any strike, labor dispute, slow down or work stoppage due to a labor
disagreement (or any material development regarding any thereof) affecting
either Borrower or any of their Subsidiaries which could reasonably be expected
to have a Material Adverse Effect, (vi) promptly after the occurrence thereof,
of any other event, condition, situation, occurrence or circumstance which could
reasonably be expected to have a Material Adverse Effect (vii) promptly after
their receipt of notice thereof, of any material Environmental Claim and (viii)
with respect to all rights, franchises, permits, Licenses and the like which may
be
69
necessary for the continuance of the operation, maintenance and management of
its Towers, (A) any citation or order relating thereto, (B) any lapse,
suspension, revocation, rescission, adverse modification or other termination
thereof, (C) any alleged breach or violation thereof by either Borrower, any of
their Subsidiaries or any other Person, (D) any proceeding relating thereto and
(E) any refusal of any Person to grant, renew or extend the same.
7.7 Maintenance of Property. The Borrowers shall, and shall cause
-----------------------
their Subsidiaries to, at all times maintain and preserve their Towers,
machinery, equipment, motor vehicles, fixtures and other property in good
working order, condition and repair, normal wear and tear excepted, and in
compliance with all material applicable standards, rules or regulations imposed
by any governmental authority or agency (including, without limitation, the FCC,
the FAA and any other Licensing Authority) or by any insurance policy held by
the Borrowers or the Subsidiaries, except for such property which, in the good
faith judgment of the Borrowers, can no longer be profitably employed in the
business of the Borrowers or their Subsidiaries.
7.8 Information and Inspection. The Borrowers shall furnish to the
--------------------------
Banks from time to time, upon request, full information pertaining to any
covenant, provision or condition hereof, or to any matter connected with their,
or their Subsidiaries', books, records, operations, financial condition,
properties, activities or business. The Borrowers shall upon request supply the
Banks with copies of all correspondence, documents, reports or information filed
with or received from any Licensing Authority relating to either Borrower, any
of their Subsidiaries, any Tower or any License. At all reasonable times, the
Borrowers shall permit any authorized representatives designated by any Bank to
visit and inspect any of the properties of either Borrower or any of their
Subsidiaries and their books and records, and to take extracts therefrom and
make copies thereof, and to discuss the Borrowers' affairs, finances and
accounts with the management and independent accountants of the Borrowers.
7.9 Maintenance of Liens. The Borrowers shall, and shall cause their
--------------------
Subsidiaries to, do all things necessary to preserve and perfect the Liens of
the Administrative Agent, for the benefit of the Banks, arising pursuant hereto
and pursuant to the Collateral Documents as first priority Liens, except for
Permitted Liens, and to insure that the Administrative Agent, for the benefit of
the Banks, has a Lien on substantially all of the assets of each Borrower and of
each of their Subsidiaries. If either
70
Borrower or any of their Subsidiaries purchases any real property or enters into
any material lease for real property, whether or not the Borrowers are using the
proceeds of a Loan to acquire such owned or leased real property, such Borrower
shall, or shall cause its Subsidiary to, (a) notify the Administrative Agent and
execute and deliver any Mortgage requested by the Administrative Agent in
connection therewith, which shall be a first lien, except for Permitted Liens,
(b) use its best efforts to obtain from each lessor under such lease, in respect
of which lease such Borrower or Subsidiary has granted to the Administrative
Agent, for the benefit of the Banks, a Mortgage, written consent to such grant
in form and substance satisfactory to the Administrative Agent, and (c) comply
with the requirements of Sections 6.4(a), (b), (c), (d), (e) and (f) as if a
Loan were being made on the date of such acquisition. If either Borrower or any
of their Subsidiaries enters into any other new material contract which
prohibits the assignment thereof or the granting of a security interest therein
without the consent of the other party, such Borrower or Subsidiary shall obtain
the written consent of such other party to the grant to the Administrative
Agent, for the benefit of the Banks, of a security interest therein pursuant to
the Borrowers Security Agreement or the Subsidiary Security Agreement.
7.10 Title To Property. Each Borrower shall, and shall cause each of
-----------------
its Subsidiaries to, own and hold title to all of its assets in its own name and
not in the name of any nominee.
7.11 Environmental Compliance and Indemnity.
--------------------------------------
(a) The Borrowers shall, and shall cause their Subsidiaries to,
comply in all material respects with all Environmental Laws, including, without
limitation, all Environmental Laws in jurisdictions in which either Borrower or
any of their Subsidiaries owns, maintains, operates or manages a Tower, facility
or site, arranges for disposal or treatment of Hazardous Materials, solid waste
or other wastes, accepts for transport any Hazardous Materials, solid wastes or
other wastes or holds any interest in real property or otherwise. The Borrowers
shall not, and shall not permit any of their Subsidiaries to, cause or allow the
Release of Hazardous Materials, solid waste or other wastes on, under or to any
real property in which such Borrower or Subsidiary holds any interest or
performs any of its operations, in material violation of any Environmental Law.
The Borrowers shall promptly notify the Administrative Agent and the Banks (i)
of any material Release of a Hazardous Material on, under or from the real
property in which either
71
Borrower or any of their Subsidiaries holds or has held an interest, upon either
Borrower's learning thereof by receipt of notice that such Borrower or
Subsidiary is or may be liable to any Person as a result of such Release or that
such Borrower or Subsidiary has been identified as potentially responsible for,
or is subject to investigation by any governmental authority relating to, such
Release, and (ii) of the commencement or threat of any judicial or
administrative proceeding alleging a violation of any Environmental Laws.
(b) If the Administrative Agent at any time has a reasonable
basis to believe that there may be a violation of any Environmental Law by, or
any liability arising thereunder of, either Borrower or any of their
Subsidiaries or related to any real property owned, leased or operated by either
Borrower or any of their Subsidiaries or real property adjacent to such real
property, which violation or liability could reasonably be expected to have a
Material Adverse Effect, then the Borrowers shall, upon request from the
Administrative Agent, provide the Administrative Agent with such reports,
certificates, engineering studies or other written material or data as the
Administrative Agent may require so as to satisfy the Administrative Agent that
such Borrower or Subsidiary is in material compliance with all applicable
Environmental Laws.
(c) The Borrowers, jointly and severally, shall defend,
indemnify and hold the Administrative Agent and the Banks, and their respective
officers, directors, stockholders, employees, agents, affiliates, successors and
assigns harmless from and against all costs (including clean up costs),
expenses, fines, claims, demands, damages, penalties and liabilities of every
kind or nature whatsoever (including reasonable attorneys', consultants' and
experts' fees) arising out of, resulting from or relating to, directly or
indirectly, (i) the noncompliance of either Borrower or any of their
Subsidiaries or any property owned or leased by either Borrower or any of their
Subsidiaries with any Environmental Law, or (ii) any investigatory or remedial
action involving either Borrower, any of their Subsidiaries or any property
owned or leased by either Borrower or any of their Subsidiaries and required by
Environmental Laws or by order of any governmental authority having jurisdiction
under any Environmental Laws, or (iii) any injury to any Person whatsoever or
damage to any property arising out of, in connection with or in any way relating
to the breach of any of the environmental warranties or covenants contained in
this Agreement or any Collateral Document or any facts or circumstances that
cause any of the environmental representations or warranties
72
contained in this Agreement or any Collateral Document to cease to be true, or
(iv) the Release of any Hazardous Material on or affecting any property owned or
leased by either Borrower or any of their Subsidiaries, or (v) the presence of
any asbestos-containing material or underground storage tanks, whether in use or
closed, under or on any property owned or leased by either Borrower or any of
their Subsidiaries.
7.12 Appraisals. If at any time any Bank determines that it must
----------
have current appraisals of any of the real property subject to a Mortgage to
comply with any law, rule or regulation applicable to it, then, upon request by
such Bank, the Borrowers shall, at their expense, order appraisals of such real
property. Such appraisals shall be in form and substance acceptable to the
Banks, shall be prepared by appraisers acceptable to the Banks and shall be
delivered to the Administrative Agent within forty-five days of the request
therefor.
7.13 Rate Hedging Obligations. The Borrowers shall at all times
------------------------
maintain in full force and effect, agreements in form and substance reasonably
satisfactory to the Required Banks regarding Rate Hedging Obligations so that
the sum (without duplication of (a) the notional amount subject to such
agreements, (b) the aggregate principal amount of all Total Debt of the
Borrowers and their Subsidiaries which bears interest at a fixed interest rate
and (c) the principal amount of all Indebtedness of Holdco which bears interest
at a fixed interest rate equals at all times at least 50% of the sum of (i) the
aggregate principal amount of all Total Debt of the Borrowers and their
Subsidiaries and (ii) the principal amount of all Indebtedness of Holdco.
7.14 Maintenance of Separate Identity. Each Borrower shall (a) not
--------------------------------
fail to correct any known misunderstanding regarding its existence separate and
distinct from Holdco, (b) maintain its accounts, books and records separate from
those of Holdco, (c) not commingle its funds or assets with those of Holdco and
shall not permit Holdco to have direct access to its cash, (d) hold all of its
assets in its own name and shall not permit Holdco to acquire or dispose of any
assets on its behalf, (e) not conduct business in the name of Holdco, (f) not
assume or guaranty or otherwise become obligated for the debts of Holdco or hold
out its credit as being available to satisfy the obligations of Holdco, and (g)
allocate fairly and reasonably any overhead for office space shared with Holdco
and shall use separate stationery, invoices and checks from those used by
Holdco.
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SECTION 8. NEGATIVE COVENANTS OF THE BORROWERS.
-----------------------------------
So long as this Agreement remains in effect or any of the Obligations
remains unpaid or to be performed, or any Letter of Credit remains outstanding,
neither Borrower shall, and neither Borrower shall permit any of its
Subsidiaries directly or indirectly to, take any of the actions set out in this
Section 8 nor permit any of the conditions set out herein to occur.
8.1 Indebtedness. The Borrowers shall not, and shall not permit
------------
any of their Subsidiaries to, incur, create, assume or permit to
exist any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness permitted under Section 8.4, 8.5 or 8.6;
(c) existing Indebtedness set forth on Exhibit F;
---------
(d) Seller Debt in an amount not to exceed $5,000,000;
(e) unsecured trade accounts payable and other unsecured current
Indebtedness incurred in the ordinary course of business and not more than one
hundred twenty days past due (but excluding any Indebtedness for borrowed
money);
(f) Indebtedness for taxes, assessments, governmental charges,
liens or similar claims to the extent that payment thereof shall not be required
to be made by the provisions of Section 7.4; and
(g) Indebtedness arising under Rate Hedging Obligations required
pursuant to Section 7.13.
8.2 Liens. The Borrowers shall not, and shall not permit any of
-----
their Subsidiaries to, incur, create, assume or permit to exist any Lien of any
nature whatsoever, including those arising in connection with conditional sales
or other title retention agreements, on any property or assets now owned or
hereafter acquired by either Borrower or any of their Subsidiaries, other than
Permitted Liens.
8.3 Guaranties. The Borrowers shall not, and shall not permit any
----------
of their Subsidiaries to, become a Guarantor for any Person, except with respect
to
74
endorsements of negotiable instruments for collection in the ordinary course of
business.
8.4 Rental and Conditional Sale Obligations. The Borrowers shall
---------------------------------------
not, and shall not permit any of their Subsidiaries to, incur, create, assume or
permit to exist, with respect to any personal property, any conditional sale
obligation, any purchase money obligation, any rental obligation, any purchase
money security interest or any other arrangement for the use of personal
property of any other Person, other than an arrangement classifiable as a
capital lease which is permitted in Section 8.6, if the aggregate amount payable
by the Borrowers and their Subsidiaries pursuant to such arrangements (other
than any such arrangements incurred in connection with a Qualified Acquisition)
would exceed $300,000 in any fiscal year.
8.5 Real Property Interests. The Borrowers shall not, and shall not
-----------------------
permit any of their Subsidiaries to, enter into, assume or permit to exist any
lease or rental obligation for real property, including, without limitation,
towers and related facilities, if the aggregate amount payable in respect
thereof by the Borrowers and their Subsidiaries (other than (a) amounts paid
pursuant to the Southpointe Lease and (b) any such arrangements incurred in
connection with a Qualified Acquisition) would exceed $1,000,000 in the
aggregate in any fiscal year.
8.6 Capitalized Lease Obligations. The Borrowers shall not, and
-----------------------------
shall not permit any of their Subsidiaries to, incur, create, assume or permit
to exist any Capitalized Lease Obligations under any lease of personal or real
property if the aggregate amount payable by the Borrowers and their Subsidiaries
in respect of all such Capitalized Lease Obligations (other than Capitalized
Lease Obligations incurred in connection with a Qualified Acquisition) would
exceed $300,000 in the aggregate in any fiscal year.
8.7 Capital Expenditures. Except for (a) any payments in respect of
--------------------
Capitalized Lease Obligations, (b) expenditures of proceeds of casualty
insurance policies reasonably and promptly applied to replace insured assets,
and (c) amounts paid by CCI upon exercise of its option to purchase the real
property which was the subject of the Southpointe Lease, the Borrowers and their
Subsidiaries shall not make Capital Expenditures which exceed the sum of (i)
$8,000,000 in the aggregate in 1998, (ii) $10,000,000 in the aggregate in 1999,
or (iii) $12,000,000 in the aggregate in any fiscal year thereafter (the amount
permitted in any year pursuant to this sentence being referred to as the "Base
Amount" for such year). If the Base Amount for any
75
year exceeds the aggregate amount of Capital Expenditures actually made by the
Borrowers and their Subsidiaries in such year (such excess being referred to as
the "Excess Amount"), then the Borrowers and their Subsidiaries may make Capital
Expenditures in the immediately succeeding year (but not in any year thereafter)
in excess of the Base Amount for such succeeding year in an amount not to exceed
the Excess Amount for the prior year.
8.8 Notes, Accounts Receivable and Claims. The Borrowers shall not,
-------------------------------------
and shall not permit any of their Subsidiaries to, (a) sell, discount or
otherwise dispose of any note, account receivable or other right to receive
payment, with or without recourse, except for collection in the ordinary course
of business; or (b) fail to timely assert any claim, cause of action or contract
right which they possess against any third party nor agree to settle or
compromise any such claim, cause of action or contract right except in any case
in the exercise of good business judgment and except for settlements or
compromises made in the reasonable exercise of business judgment in the ordinary
course of business.
8.9 Capital Distributions.
---------------------
(a) Neither Borrower shall, and neither Borrower shall permit
any of its Subsidiaries to, make, or declare or incur any liability to make, any
Capital Distribution, except that:
(i) any Subsidiary of a Borrower may make Capital
Distributions to such Borrower or to a wholly owned Subsidiary of such Borrower;
(ii) CCI may make Capital Distributions to Holdco solely in
order to permit Holdco to pay its out-of-pocket costs for corporate development
and overhead and to pay cash interest expense actually incurred by Holdco on
Permitted Indebtedness (as that term is defined in the Holdco Guaranty) so long
as: (A) the aggregate amount of such Capital Distributions does not exceed
$6,000,000 in any year ending on or prior to October 31, 2002, or $33,000,000 in
any year thereafter; (B) prior to making any such distribution, the Borrowers
shall have demonstrated to the satisfaction of the Administrative Agent that the
Borrowers will be in compliance with all of the covenants contained herein after
giving effect to such distribution; (C) no Possible Default or Event of Default
exists at the time of making such distribution or would exist after giving
effect thereto; (D) prior to making any such distribution, the Borrowers shall
have delivered to the Administrative Agent a
76
certificate of CCI's chief financial officer in form and substance satisfactory
to the Administrative Agent which shall contain calculations demonstrating on a
pro forma basis the Borrowers' compliance with the financial covenants set forth
in this Section 8 after giving effect to such distribution; and (E) such
distributions shall not be made more frequently than four times per year; and
(iii) CCI may make Capital Distributions to Holdco
solely in order to permit Holdco to pay that portion of the federal, state and
local income tax liability (exclusive of penalties and interest) of Holdco which
arises from the allocation to Holdco for income tax purposes of taxable income
and/or taxable gain of the Borrowers (not to exceed the actual federal, state
and local income tax liability of Holdco) so long as: (A) prior to making any
such distribution, the Borrowers shall have demonstrated to the satisfaction of
the Administrative Agent that the Borrowers will be in compliance with all of
the covenants contained herein after giving effect to such distribution; (B) no
Possible Default or Event of Default exists at the time of making such
distribution or would exist after giving effect thereto; (C) prior to making any
such distribution, the Borrowers shall have delivered to the Administrative
Agent a certificate of CCI's chief financial officer in form and substance
satisfactory to the Administrative Agent which shall contain calculations
demonstrating on a pro forma basis the Borrowers' compliance with the financial
covenants set forth in this Section 8 after giving effect to such distribution
and the calculation of such income tax liability; and (D) such distributions
shall not be made more frequently than four times per year.
(b) Neither Borrower shall permit any of its Subsidiaries to
agree to or to be subject to any restriction on its ability to make Capital
Distributions or loans or loan repayments or other asset transfers to its
stockholders other than restrictions imposed by applicable law and the
restrictions set forth in this Section.
8.10 Disposal of Property; Mergers; Acquisitions; Reorganizations.
------------------------------------------------------------
(a) Except as expressly permitted pursuant to Section 8.10(b),
Section 8.10(c) or Section 8.11, neither Borrower shall, and neither Borrower
shall permit any of its Subsidiaries to, (i) dissolve or liquidate; (ii) sell,
lease, transfer or otherwise dispose of any material portion of its properties
or assets to any Person; (iii) be a party to any consolidation, merger,
recapitalization or other form of reorganization; (iv) make any acquisition of
all or
77
substantially all the assets of any Person, or of a business division or line of
business of any Person, or of any other assets constituting a going business;
(v) create, acquire or hold any Subsidiary; or (vi) be or become a party to any
joint venture or other partnership.
(b) The Borrowers may make acquisitions of communications
tower facilities, site management and site acquisition companies and related
communications and information transmission businesses, either by the
acquisition of assets or the acquisition of all of the outstanding equity
interests of entities engaged in such businesses, subject to the satisfaction of
the following conditions (any such acquisition, or series of related
acquisitions, which satisfies such conditions being referred to hereinafter as a
"Qualified Acquisition"):
(i) the Borrowers shall have given to the
Administrative Agent written notice of such acquisition at least fifteen days
prior to executing any binding commitment with respect thereto;
(ii) the Borrowers shall have demonstrated to the
satisfaction of the Administrative Agent that the Borrowers will be in
compliance with all of the covenants contained herein after giving effect to
such acquisition and that no Event of Default or Possible Default then exists or
would exist after giving effect to such acquisition;
(iii) the Borrowers shall have delivered to the
Administrative Agent within twenty days prior to the consummation of such
acquisition an acquisition report signed by CCI's chief financial officer in
form and substance satisfactory to the Administrative Agent which shall contain
calculations demonstrating on a pro forma basis the Borrowers' compliance with
the financial covenants set forth in this Section 8 after giving effect to such
acquisition and, if the borrowing hereunder in connection with such acquisition
is in an amount in excess of $5,000,000, projections for the Borrowers for a
five year period after the closing of such acquisition giving effect to such
acquisition and including a statement of sources and uses of funds for such
acquisition showing, among other things, the source of financing for such
acquisition;
(iv) after giving effect to such acquisition, the
Borrowers shall have (A) marketable fee simple title or an assignable and
insurable leasehold interest in each property on which an acquired Tower is
located and (B) either (I) written agreements for licensing
78
of space on such Tower with at least 75% of the licensees of space on such Tower
existing immediately prior to such acquisition or (II) in their good faith
judgment, a strong probability of retaining 90% of the licensees of space on
such Tower existing immediately prior to such acquisition, in each case, with
respect to such license agreements, on substantially the same terms and
conditions as existed immediately prior to such acquisition;
(v) the Administrative Agent shall have received from
the Borrowers an engineering report from an engineer, satisfactory to the
Administrative Agent (which engineer may be an employee of a Borrower or one of
their Subsidiaries), acceptable in form and substance to the Administrative
Agent, with respect to the construction, engineering and maintenance of the
Towers to be acquired or managed and their compliance with applicable laws,
rules and regulations;
(vi) the agreement governing such acquisition and all
related documents and instruments shall be satisfactory to the Administrative
Agent in form and substance;
(vii) the Purchase Price of such acquisition shall be
payable in cash at the closing of such acquisition or by the delivery of a
Borrower's note, so long as such note satisfies the following conditions (the
aggregate Indebtedness evidenced by all such notes being referred to herein
collectively as "Seller Debt"):
(A) such note shall be secured by a Letter of
Credit issued pursuant hereto (subject to the satisfaction of the conditions to
such issuance set forth herein) in the amount of such note but shall not be
secured by any Lien on any property of either Borrower or any of their
Subsidiaries;
(B) such note shall bear interest at a fixed
rate which shall not exceed the lower of the rate of interest on United States
Treasury obligations having a term of one year or 7% per annum;
(C) no principal payment shall be permitted or
required on such note prior to December 31, 2004;
(D) the sum of the principal amount of such note
and the principal amount of all other notes issued by the Borrowers in
connection with Qualified Acquisitions shall not exceed $5,000,000; and
79
(E) no more than five notes issued by the
Borrowers pursuant to Qualified Acquisitions shall be outstanding at any one
time;
(viii) the Borrowers and their Subsidiaries shall have
taken any actions as may be necessary or reasonably requested by the
Administrative Agent to grant to the Administrative Agent, for the benefit of
the Banks, first priority, perfected Liens in all assets, real and personal,
tangible and intangible, acquired by either Borrower or any of their
Subsidiaries in such acquisition pursuant to the Collateral Documents, subject
to no prior Liens except Permitted Liens; and with respect to any real estate
acquired or leased by the Borrowers or their Subsidiaries in connection with
such acquisition, the Borrowers shall have complied with the requirements of
Sections 6.4(a), (b), (c), (d), (e) and (f) as if a Loan were being made on the
date of such acquisition;
(ix) if either Borrower or any of their Subsidiaries
acquires a Subsidiary or creates a Subsidiary pursuant to or in connection with
such acquisition,
(A) such Borrower shall, or shall cause its
Subsidiary which owns such newly acquired or created Subsidiary to, execute a
Pledge Agreement, in substantially the form of the Pledge Agreements or
otherwise in form and substance satisfactory to the Required Banks, pursuant to
which all of the stock or other securities or equity interests of such acquired
or created Subsidiary are pledged to the Administrative Agent, for the benefit
of the Banks, as security for the Obligations of the Borrowers hereunder and
under the Notes and the Collateral Documents;
(B) such acquired or created Subsidiary shall
execute and deliver to the Administrative Agent, for the benefit of the Banks, a
guaranty, and shall grant to the Administrative Agent, for the benefit of the
Banks, a first priority, perfected lien or security interest in all of its
assets, real and personal, tangible and intangible, subject to no prior liens or
security interests except for Permitted Liens, pursuant to a Security Agreement
and Mortgages, in each case in substantially the form of the guaranties and
security agreements contained in the Collateral Documents or otherwise in form
and substance satisfactory to the Required Banks, and shall take all actions
required pursuant thereto; and
(C) the Borrowers shall have entered into an
amendment to the Collateral Documents, in form and substance reasonably
satisfactory to the Banks,
80
which shall make the covenants, defaults and other provisions of this Agreement
applicable to such Subsidiary;
(x) the Borrowers shall have delivered to the
Administrative Agent evidence reasonably satisfactory to the Administrative
Agent to the effect that all approvals, consents or authorizations required in
connection with such acquisition from any Licensing Authority or other
governmental authority shall have been obtained, and such opinions as the
Administrative Agent may reasonably request as to the liens and security
interests granted to the Administrative Agent, for the benefit of the Banks, as
required pursuant to this Section, and as to any required regulatory approvals
for such acquisition;
(xi) the Administrative Agent shall have received
copies of all documents relating to such acquisition, and the Borrowers shall
have caused all opinions and certificates of the seller of such Towers delivered
in connection with such closing to be addressed to the Banks; and
(xii) if such acquisition involves an aggregate
Purchase Price of at least $5,000,000, then, to the extent requested by the
Required Banks, the Banks shall have received a statement from KPMG Peat Marwick
(or another nationally recognized firm of independent certified public
accountants selected by the Borrowers and acceptable to the Administrative
Agent) certifying as to the operating cash flow of the acquired Towers or, in
the case of a management agreement, such management agreement, for the twelve
month period most recently ended prior to the closing of such acquisition and as
to such other matters as the Administrative Agent may reasonably request.
(c) The Borrowers may, subject to compliance with Section
2.5(b)(iii), dispose of tower facilities subject to the following conditions:
(i) no Event of Default or Possible Default shall
then exist or shall exist after giving effect to such disposition;
(ii) the Operating Cash Flow attributable to such
tower facilities in the four quarter period most recently ended, together with
the Operating Cash Flow attributable to all tower facilities previously disposed
of in such four quarter period, shall not exceed 5% of total Operating Cash Flow
for such four quarter period; and
81
(iii) no tower facilities may be disposed of at any time if
the Operating Cash Flow attributable to such tower facilities, together with the
Operating Cash Flow attributable to all tower facilities previously disposed of
since October 31, 1997, exceeds 15% of total Operating Cash Flow for the four
quarter period most recently ended.
8.11 Investments. The Borrowers shall not, and shall not permit any
-----------
of their Subsidiaries to, purchase or otherwise acquire, hold or invest in any
stock or other securities or evidences of indebtedness of, or any interest or
investment in, or make or permit to exist any loans or advances to, any other
Person, except:
(a) direct obligations of the United States Government maturing
within one year;
(b) certificates of deposit of a member bank of the Federal
Reserve System having capital, surplus and undivided profits in excess of
$100,000,000;
(c) any investment in commercial paper which at the time of such
investment is assigned the highest quality rating in accordance with the rating
systems employed by either ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's
Corporation;
(d) investments in Subsidiaries existing as of the date hereof
or created or acquired in connection with a Qualified Acquisition to the extent
permitted pursuant to Section 8.10(b);
(e) loans and advance to employees in an aggregate amount for
the Borrowers and their Subsidiaries not to exceed at any time $250,000; and
(f) any investment in joint ventures, whether structured as
limited partnerships, limited liability companies or otherwise, subject to the
following conditions:
(i) no Event of Default or Possible Default shall exist at
the time of making any such investment or after giving effect to the making of
such investment;
(ii) the contribution of all such joint ventures to the
consolidated revenues of the Borrowers shall not at any time exceed 20% of the
consolidated revenues of the Borrowers;
82
(iii) the aggregate amount of proceeds of the Loans
contributed to such joint ventures shall not exceed $20,000,000; and
(iv) neither Borrower nor any of their Subsidiaries shall
have any liability, whether direct or contingent, for any of the obligations or
liabilities of any such joint venture.
8.12 Amendment of Governing Documents. The Borrowers shall not, and
--------------------------------
shall not permit any of their Subsidiaries or any other Person to, amend, modify
or supplement its Certificate of Incorporation, its By-Laws or any other
organizational or governing document of either Borrower or any of their
Subsidiaries, unless required by law.
8.13 Financial Covenants.
-------------------
(a) Leverage Ratio. The Borrowers shall not permit the Leverage
--------------
Ratio as of any date in any period listed in Column A below to be greater than
the ratio set forth in Column B below opposite such period:
Column A Column B
-------- --------
Period: Permitted Ratio:
------- ----------------
December 31, 1997, to December 6.0:1.0
31, 2000:
January 1, 2001, to June 30, 5.5:1.0
2001:
July 1, 2001, to December 31, 5.0:1.0
2001:
January 1, 2002, to June 30, 4.5:1.0
2002:
July 1, 2002, to December 31, 4.0:1.0
2002:
January 1, 2003, and 3.5:1.0.
thereafter:
(b) Fixed Charge Coverage Ratio. The Borrowers shall not permit
---------------------------
the Fixed Charge Coverage Ratio as of any date to be less than 1.05 to 1.00.
83
(c) Projected Debt Service Coverage Ratio. The Borrowers shall
-------------------------------------
not permit the ratio of Test Operating Cash Flow as of the end of any four
quarter period ending on or prior to December 31, 2000, to Projected Debt
Service as of such date to be less than 1.1 to 1.0; and the Borrowers shall not
permit the ratio of Test Operating Cash Flow as of the end of any four quarter
period ending after December 31, 2000, to Projected Debt Service as of such date
to be less than 1.15 to 1.0.
(d) Operating Cash Flow to Interest Expense Ratio. The Borrowers
---------------------------------------------
shall not permit the ratio of Operating Cash Flow for any four quarter period to
Interest Expense for such four quarter period to be less than 2.0:1.0.
8.14 Management Agreements and Fees. The Borrowers shall not, and
------------------------------
shall not permit any of their Subsidiaries to, make or enter into, nor pay any
management fees pursuant to, any management or service agreement whereby
management, supervision or control of its business, or any significant aspect
thereof, shall be delegated to or placed in any Person other than an employee of
a Borrower or a Subsidiary of a Borrower.
8.15 Fiscal Year. The Borrowers shall not, and shall not permit any
-----------
of their Subsidiaries to, change their fiscal year, which shall be the calendar
year.
8.16 ERISA. Neither the Borrowers nor any member of the Controlled
-----
Group shall fail to make any contributions which are required pursuant to the
terms of any Plan or any Benefit Arrangement. Neither the Borrowers nor any
member of the Controlled Group shall contribute to or agree to contribute to any
Plan which is (a) subject to the minimum funding requirements under ERISA
Section 302 or Code Section 412; (b) a multiemployer plan (as defined in ERISA
Section 4001(a)(3)); (c) a defined benefit plan (as defined under ERISA Section
3(35) or Code Section 414(j)); (d) a multiple employer plan (as defined in ERISA
Section 4063); or (e) a multiple employer welfare arrangement (as defined in
ERISA Section 3(40)).
8.17 Affiliates. The Borrowers shall not, and shall not permit any
----------
of their Subsidiaries to, enter into any transaction, agreement or arrangement
with Holdco or any other Affiliate of either Borrower (other than a Borrower or
Subsidiary of a Borrower) unless the terms of such transaction or agreement are
no less favorable to the Borrowers or their Subsidiaries than could be obtained
in an arms-length transaction.
84
8.18 Change of Name or Corporate Structure. Neither Borrower shall,
-------------------------------------
and neither Borrower shall permit any of its Subsidiaries to, change its name or
corporate structure without thirty days prior written notice to the
Administrative Agent.
8.19 Amendments or Waivers. The Borrowers shall not amend, alter or
---------------------
modify, or consent to or suffer any amendment, alteration or modification, of
any License, Land Lease Agreement or other material contract (or waive a
material right thereunder) except for any amendments, alterations or
modifications which could not reasonably be expected to have a Material Adverse
Effect.
8.20 Issuance or Transfer of Capital Stock. Neither Borrower shall,
-------------------------------------
and neither Borrower shall permit any of its Subsidiaries to, sell or issue any
capital stock or other equity interests or any warrants, options or other
securities convertible into or exercisable for any capital stock or other equity
interests, and neither Borrower shall, and neither Borrower shall permit any of
its Subsidiaries to, permit the transfer of any of its capital stock or other
equity interests or any warrants, options or other securities convertible into
or exercisable for any capital stock or other equity interests.
8.21 Change in Business. The Borrowers shall not, and shall not permit
------------------
their Subsidiaries to, change the nature of their business in any material
respect.
8.22 Regulation U. The Borrowers shall not, directly or indirectly,
------------
(a) apply any part of the proceeds of the Loans to the purchasing or carrying of
any "margin stock" within the meaning of Regulations T, U or X of the Federal
Reserve Board, or any regulations, interpretations or rulings thereunder, (b)
extend credit to others for the purpose of purchasing or carrying any such
margin stock, or (c) retire Indebtedness which was incurred to purchase or carry
any such margin stock.
8.23 Subordinated Debt. The Borrowers shall not, and shall not
-----------------
permit any of their Subsidiaries to, make, or cause or permit to be made, any
payments in respect of any Indebtedness which is subordinated to the Obligations
in contravention of the subordination provisions contained in the evidence of
such subordinated Indebtedness or in contravention of any subordination
agreement or other written agreement pertaining to Subordinated Debt.
85
SECTION 9. EVENTS OF DEFAULT.
-----------------
The occurrence of any one or more of the following events, whether
voluntarily or involuntarily or by operation of law, shall constitute an Event
of Default hereunder:
9.1 Non-Payment. The Borrowers shall (a) fail to pay when due,
-----------
whether by acceleration of maturity or otherwise, any installment of principal
due hereunder or under any Note or (b) fail to pay when due, whether by
acceleration of maturity or otherwise, or within two days thereafter, any
installment of interest due hereunder or under any Note or any fee or other
payment obligation in respect of the Obligations or payable pursuant to the Fee
Letter.
9.2 Failure of Performance in Respect of Other Obligations. (a)
------------------------------------------------------
Either Borrower shall fail to observe, perform or be in compliance with any of
the provisions of Section 8, Sections 7.1 or 7.3 or the first sentence of
Section 7.2; or (b) either Borrower, any of their Subsidiaries or any other
party to a Collateral Document (other than the Administrative Agent or a Bank)
shall fail to observe, perform or be in compliance with the terms of any
Obligation, covenant or agreement, other than those referred to in Section 9.1,
Section 8, Sections 7.1 or 7.3 or the first sentence of Section 7.2, to be
observed, performed or complied with by such Borrower, Subsidiary or other party
hereunder or under any Collateral Document and, provided that such failure is of
--------
a type which can be cured, such failure shall continue and not be cured for
thirty days after: (i) notice thereof from the Administrative Agent or a Bank or
(ii) the Administrative Agent or the Banks are notified thereof or should have
been notified thereof pursuant to the provisions of Section 7.6, whichever is
earlier; or (c) any party to any Pledge Agreement shall, or shall attempt to,
voluntarily or involuntarily, encumber, subject to any further pledge or
security interest, sell, transfer or otherwise dispose of any of the Pledged
Collateral (as that term is defined in any Pledge Agreement) or any interest
therein except as expressly provided herein or therein.
9.3 Breach of Warranty. Any financial statement, representation,
------------------
warranty, statement or certificate made or furnished by Holdco, either Borrower,
any of their Subsidiaries or any other party to a Collateral Document (other
than the Administrative Agent or a Bank) to the Administrative Agent or the
Banks in or in connection with this Agreement or any Collateral Document, or as
an inducement to the Administrative Agent or the Banks to enter
86
into this Agreement or any of the Collateral Documents, including, without
limitation, those in Section 5 above or in any Collateral Document, shall have
been false, incorrect or incomplete when made or deemed made in any material
respect.
9.4 Cross-Defaults. Any Change in Control or Event of Default, as
--------------
those terms are defined in the Indenture as in effect as of the date hereof,
shall occur; or either Borrower or any of their Subsidiaries shall default in
any payment due on any Indebtedness in excess of $50,000 in the aggregate and
such default shall continue for more than the period of grace, if any,
applicable thereto; or either Borrower or any of their Subsidiaries shall
default in the performance of or compliance with any term of any evidence of
such Indebtedness or of any mortgage, indenture or other agreement relating
thereto, and any such default shall continue for more than the period of grace,
if any, specified therein and shall not have been waived pursuant thereto if
such default causes, or permits the holder thereof to cause, the acceleration of
such Indebtedness;
9.5 Assignment for Benefit of Creditors. Either Borrower or any of
-----------------------------------
their Subsidiaries or Holdco shall make an assignment for the benefit of its
creditors, or shall admit its insolvency or shall fail to pay its debts
generally as such debts become due.
9.6 Bankruptcy. Any petition seeking relief under Title 11 of the
----------
United States Code, as now constituted or hereafter amended, shall be filed by
or against either Borrower, any of their Subsidiaries or Holdco or any
proceeding shall be commenced by or against either Borrower, any of their
Subsidiaries or Holdco with respect to relief under the provisions of any other
applicable bankruptcy, insolvency or other similar law of the United States or
any State providing for the reorganization, winding-up or liquidation of Persons
or an arrangement, composition, extension or adjustment with creditors;
provided, however, that no Event of Default shall be deemed to have occurred if
-------- -------
any such involuntary petition or proceeding shall be discharged within sixty
days of its filing or commencement.
9.7 Appointment of Receiver; Liquidation. A receiver or trustee
------------------------------------
shall be appointed for either Borrower, any of their Subsidiaries or Holdco or
for any substantial part of its assets, and such receiver or trustee shall not
be discharged within sixty days of his appointment; any proceedings shall be
instituted for the dissolution or the full or partial liquidation of either
Borrower, any of their
87
Subsidiaries or Holdco and such proceedings shall not be dismissed or discharged
within sixty days of their commencement; or either Borrower, any of their
Subsidiaries or Holdco shall discontinue its business.
9.8 Judgments. Either Borrower or any of their Subsidiaries shall
---------
incur a final judgment for the payment of money in an amount which, together
with all other final judgments against either Borrower or any of their
Subsidiaries, exceeds $50,000 in the aggregate, and shall not discharge (or make
adequate provision for the discharge of) the same within a period of thirty days
unless, pending further proceedings, execution thereon has been effectively
stayed; or a non-monetary judgment or order shall be rendered against either
Borrower or any of their Subsidiaries that could reasonably be expected to have
a Material Adverse Effect, and there shall be any period in excess of thirty
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect.
9.9 Impairment of Collateral; Invalidation of any Loan Document. (a)
-----------------------------------------------------------
A creditor of either Borrower, any of their Subsidiaries, Holdco or any other
party to a Collateral Document shall obtain possession of any of the collateral
for the Obligations by any means, including, without limitation, attachment,
levy, distraint, replevin or self-help, or any creditor shall establish or
obtain any right in such collateral; or (b) the Administrative Agent shall cease
to have a perfected, first priority Lien on all of the issued and outstanding
capital stock of each Borrower and of each Subsidiary of each Borrower; or (c)
any Lien created or purported to be created by this Agreement or any Collateral
Document shall cease or fail to be perfected with respect to any of the
collateral purported to be covered thereby; or (d) any material portion of such
collateral shall be lost, stolen, damaged or destroyed for which there is either
no insurance coverage or in, in the reasonable opinion of the Administrative
Agent, there is insufficient insurance coverage; or (e) this Agreement, any Note
or any Collateral Document ceases to be a legal, valid, binding agreement or
obligation enforceable against any party thereto (including the Administrative
Agent and the Banks) in accordance with its terms, or shall be terminated,
invalidated, set aside or declared ineffective or inoperative; or (f) any party
to any Collateral Document shall contest or deny the validity or enforceability
of such Collateral Document or any lien, security interest or obligation
purported to be created thereby.
88
9.10 Termination of License or Agreements. The FCC, the FAA or any
------------------------------------
other Licensing Authority shall revoke, terminate, substantially and adversely
modify or fail to renew any material License of either Borrower or any of their
Subsidiaries or commence proceedings to suspend, revoke, terminate or
substantially and adversely modify any such License and such proceedings shall
not be dismissed or discharged within sixty days; or the License Agreements or
any Land Lease Agreements or other agreements which are necessary to the
operation of the business of either Borrower or any of their Subsidiaries shall
be revoked, terminated or adversely modified and not replaced by substitutes
acceptable to the Administrative Agent within thirty days of such revocation,
termination or modification and without which agreements a Material Adverse
Effect could reasonably be expected.
9.11 Change of Control. (i) Any Person (or group of Persons) is or
-----------------
becomes the "beneficial owner" (within the meaning of Rules 13d-3 and 13d-5
under the federal Securities Exchange Act of 1934, as amended), directly or
indirectly, of a percentage of the common voting stock of Holdco greater than
35%; or (ii) during any period of twenty-four consecutive months, individuals
who at the beginning of such period constituted the Board of Directors of Holdco
(together with any new directors whose election by such Board or whose
nomination for election by the stockholders of Holdco was approved by a majority
of the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office; or (iii) Holdco shall cease to own all of the issued
and outstanding capital stock of CCI; or (iv) CCI shall cease to own all of the
issued and outstanding capital stock of each of CCI-PR, Spectrum, TEA, Crown
Network and Crown Mobile; or (v) TEA shall cease to own all of the issued and
outstanding capital stock of TeleStructures.
9.12 Default under Collateral Document. Either Borrower, any of
---------------------------------
their Subsidiaries or any other party (other than the Administrative Agent and
the Banks) shall default under any Collateral Document after any required notice
and such default shall continue beyond any applicable grace period.
9.13 Condemnation. Any court, government or governmental agency
------------
shall condemn, seize, or otherwise appropriate, or take custody or control of
any substantial portion of the assets of either Borrower or any of their
Subsidiaries.
89
9.14 Material Adverse Effect. Any Material Adverse Effect shall
-----------------------
occur.
SECTION 10. REMEDIES.
--------
Notwithstanding any contrary provision or inference herein or
elsewhere,
10.1 Optional Defaults. If any Event of Default referred to in
-----------------
Section 9.1 through and including Section 9.4 or Section 9.8 through and
including Section 9.14 shall occur, the Issuing Bank shall not be required to
issue any additional Letters of Credit, and the Administrative Agent, with the
consent of the Required Banks, upon written notice to the Borrowers, may
(a) terminate the Reducing Commitment and the credit hereby
established and forthwith upon such election the obligations of the Banks to
make any further Loans hereunder (other than Loans resulting from the funding of
Letters of Credit) immediately shall be terminated, and/or
(b) accelerate the maturity of the Loans and all other
Obligations, whereupon all Obligations shall become and thereafter be
immediately due and payable in full without any presentment or demand and
without any further or other notice of any kind, all of which are hereby waived
by the Borrowers, and/or
(c) demand the payment to the Issuing Bank of the aggregate
stated amount of the outstanding Letters of Credit, which amount the Issuing
Bank shall hold as security for the obligations incurred under the Letters of
Credit.
10.2 Automatic Defaults. If any Event of Default referred to in
------------------
Sections 9.5-9.7 shall occur,
(a) the Reducing Commitment and the credit hereby established
shall automatically and forthwith terminate, and the Banks thereafter shall be
under no obligation to grant any further Loans hereunder (other than Loans
resulting from the funding of Letters of Credit), and
(b) the principal of and interest on the Notes, then
outstanding, and all of the other Obligations shall thereupon become and
thereafter be immediately due and payable in full, all without any presentment,
demand or notice of any kind, which are hereby waived by the Borrowers, and
90
(c) the Issuing Bank shall not be required to issue any
additional Letters of Credit, and the aggregate stated amount of the outstanding
Letters of Credit shall be immediately payable by the Borrowers to the Issuing
Bank, which amount the Issuing Bank shall hold as security for the obligations
incurred under the Letters of Credit.
10.3 Performance by the Banks. If at any time either Borrower or any
------------------------
of their Subsidiaries fails or refuses to pay or perform any obligation or duty
to any third Person, except for payments which are the subject of bona fide
disputes in the ordinary course of business, the Administrative Agent or the
Banks may, in their sole discretion, but shall not be obligated to, pay or
perform the same on behalf of such Borrower or Subsidiary, and the Borrowers
shall promptly repay all amounts so paid, and all costs and expenses so
incurred. This repayment obligation shall become one of the Obligations of the
Borrowers hereunder and shall bear interest at the Default Interest Rate.
10.4 Other Remedies. Upon the occurrence of an Event of Default, the
--------------
Administrative Agent and the Banks may exercise any other right, power or remedy
as may be provided herein, in any Note or in any other Collateral Document, or
as may be provided at law or in equity, including, without limitation, the right
to recover judgment against the Borrowers for any amount due either before,
during or after any proceedings for the enforcement of any security or any
realization upon any security.
10.5 Enforcement and Waiver by the Banks. The Administrative Agent
-----------------------------------
and the Banks shall have the right at all times to enforce the provisions of
this Agreement and all Collateral Documents in strict accordance with the terms
hereof and thereof, notwithstanding any conduct or custom on the part of the
Administrative Agent or the Banks in refraining from so doing at any time,
unless the Banks shall have waived such enforcement in writing in respect of a
particular instance. The failure of the Administrative Agent or the Banks at
any time to enforce their rights under such provisions shall not be construed as
having created a custom or course of dealing in any way contrary to the specific
provisions of this Agreement or the Collateral Documents, or as having in any
way modified or waived the same. All rights, powers and remedies of the
Administrative Agent and the Banks are cumulative and concurrent and the
exercise of one right, power or remedy shall not be deemed a waiver or release
of any other right, power or remedy.
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SECTION 11. THE AGENTS.
----------
11.1 Appointment. Key Corporate Capital Inc. is hereby appointed
-----------
administrative agent and documentation agent hereunder, and each of the Banks
irrevocably authorizes the Administrative Agent to act as the agent of such
Bank. PNC Bank, National Association is hereby appointed syndication agent
hereunder, and each of the Banks irrevocably authorizes the Syndication Agent to
act as the agent of such Bank. The Administrative Agent and the Syndication
Agent agree to act as such upon the express conditions contained in this Section
11. Neither the Administrative Agent nor the Syndication Agent shall have a
fiduciary relationship in respect of any Bank by reason of this Agreement.
11.2 Powers. The Administrative Agent shall have and may exercise
------
such powers hereunder as are specifically delegated to it by the terms hereof,
together with such powers as are reasonably incidental thereto. The
Administrative Agent shall not have any implied duties or any obligation to the
Banks to take any action hereunder except any action specifically provided by
this Agreement to be taken by the Administrative Agent.
11.3 General Immunity. Neither the Administrative Agent nor the
----------------
Syndication Agent nor any of their respective directors, officers, affiliates,
agents or employees shall be liable to the Banks or any Bank for any action
taken or omitted to be taken by it or them hereunder or in connection herewith
except for its or their own gross negligence or willful misconduct. Without
limiting the foregoing, neither the Administrative Agent nor the Syndication
Agent nor any of their respective directors, officers, affiliates, agents or
employees shall be responsible for, or have any duty to examine (a) the
genuineness, execution, validity, effectiveness, enforceability, value or
sufficiency of this Agreement, any Collateral Document, or any other document or
instrument furnished pursuant to or in connection with this Agreement or any
Collateral Document, (b) the collectibility of any amounts owed by the Borrowers
or any of their Subsidiaries, (c) any recitals, statements, reports,
representations or warranties made in connection with this Agreement or any
Collateral Document, (d) the performance or satisfaction by the Borrowers or any
of their Subsidiaries of any covenant or agreement contained herein or in any
Collateral Document, (e) any failure of any party to this Agreement to receive
any communication sent, including any telegram, teletype, bank wire, cable,
radiogram or telephone message sent or any writing, application, notice, report,
statement,
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certificate, resolution, request, order, consent letter or other instrument or
paper or communication entrusted to the mails or to a delivery service, or (f)
the assets or liabilities or financial condition or results of operations or
business or credit-worthiness of either Borrower or any of their Subsidiaries.
The Administrative Agent shall not be bound to ascertain or inquire as to the
performance or observance of any of the terms of this Agreement or any
Collateral Document.
11.4 Action on Instructions of the Banks. The Administrative Agent
-----------------------------------
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Banks
(subject to Section 11.12 hereof), and such instructions shall be binding upon
all the Banks and all holders of the Notes; provided, however, that the
-------- -------
Administrative Agent shall not be required to take any action which exposes it
to personal liability or which is contrary to this Agreement or applicable law.
The foregoing provisions of this Section 11.4 shall not limit in any way the
exercise by any Bank of any right or remedy granted to such Bank pursuant to the
terms of this Agreement or any Collateral Document. Except as otherwise
expressly provided herein, any reference in this Agreement to action by the
Banks shall be deemed to be a reference to the Required Banks.
11.5 Employment of Administrative Agents and Counsel. The
-----------------------------------------------
Administrative Agent may execute any of its duties as Administrative Agent
hereunder by or through employees, agents and attorneys-in-fact and shall not be
answerable to the Banks, except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
11.6 Reliance on Documents; Counsel. The Administrative Agent shall
------------------------------
be entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper, document or other communications believed by
it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, with respect to legal matters, upon the opinion of
counsel selected by the Administrative Agent, which counsel may be employees of
the Administrative Agent, concerning all matters pertaining to the agency hereby
created and its duties hereunder.
93
11.7 Administrative Agent's Reimbursement and Indemnification. The
--------------------------------------------------------
Banks agree to reimburse and indemnify the Administrative Agent (which
indemnification shall be shared by the Banks ratably in proportion to their
respective Ratable Shares) (a) for any amounts not reimbursed by the Borrowers
for which the Administrative Agent is entitled to reimbursement by the Borrowers
hereunder or under any Collateral Document, (b) for any other expenses
reasonably incurred by the Administrative Agent on behalf of the Banks, in
connection with the preparation, execution, delivery, administration, amendment
or enforcement hereof or of any of the Collateral Documents and (c) for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement, any Collateral Document or any
other document related hereto or thereto or the transactions contemplated hereby
or the enforcement of any of the terms hereof or thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
--------
extent they arise from the gross negligence or willful misconduct of the
Administrative Agent.
11.8 Rights as a Bank. With respect to its Ratable Share of the
----------------
Reducing Commitment, the Loans made by it, the Letters of Credit issued by the
Issuing Bank and the Notes issued to it, each of the Administrative Agent and
the Syndication Agent shall have the same rights and powers hereunder as any
Bank and may exercise the same as though it were not the Administrative Agent or
the Syndication Agent, as the case may be, and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include the Administrative Agent and the
Syndication Agent in their individual capacities. Each of the Administrative
Agent and the Syndication Agent may accept deposits from, lend money to, and
generally engage in any kind of banking or trust business with the Borrowers and
their Subsidiaries as if it were not the Administrative Agent or the Syndication
Agent hereunder.
11.9 Bank Credit Decision. Each Bank acknowledges that it has,
--------------------
independently and without reliance upon the Administrative Agent, the
Syndication Agent or any other Bank and based on the financial statements
prepared by the Borrowers and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement and the other Collateral Documents. Each Bank also acknowledges that
it will, independently and without reliance upon the
94
Administrative Agent, the Syndication Agent or any other Bank 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 and the other Collateral Documents. Neither the Administrative Agent
nor the Syndication Agent shall be required to keep the Banks informed as to the
performance or observance by the Borrowers or their Subsidiaries of this
Agreement or any other document referred to or provided for herein or to inspect
the properties or books of either Borrower or any of their Subsidiaries. Except
for notices, reports and other documents and information expressly required to
be furnished to the Banks by the Administrative Agent hereunder, neither the
Administrative Agent nor the Syndication Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of either Borrower or
any of their Subsidiaries which may come into its possession.
11.10 Successor Administrative Agent.
------------------------------
(a) The Administrative Agent may, without the consent of the
Borrowers or the other Banks, assign its rights and obligations as
Administrative Agent hereunder and under the Collateral Documents to its parent
or to any wholly owned subsidiary of its parent which has capital and retained
earnings of at least $500,000,000, and upon such assignment, the former
Administrative Agent shall be deemed to have retired, and such wholly owned
subsidiary shall be deemed to be a successor Administrative Agent.
(b) The Administrative Agent may resign at any time by giving
written notice thereof to the Banks. Upon any such resignation, the Required
Banks shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Banks and shall have accepted such appointment within thirty days after the
notice of resignation, then the retiring Administrative Agent may appoint a
successor Administrative Agent. Such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least $500,000,000.
(c) Upon the acceptance of any appointment as the Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the assigning or retiring
Administrative Agent, and the assigning or retiring Administrative Agent shall
be discharged from its duties and
95
obligations hereunder. After any assigning or retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions of this
Section 11 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder.
11.11 Ratable Sharing. All principal and interest payments on Loans
---------------
and commitment fees received by the Administrative Agent shall be remitted to
the Banks in accordance with their Ratable Shares. Any amounts received by the
Administrative Agent or any other Bank upon the sale of any collateral for the
Loans or upon the exercise of any remedies hereunder or under any of the
Collateral Documents or upon the exercise of any right of setoff shall be
remitted to the Banks in accordance with their Ratable Shares; provided,
--------
however, that, solely for purposes of the sharing of any amounts received by the
-------
Administrative Agent or any other Bank, if at the time of any such receipt the
Borrowers have defaulted under any agreements regarding Rate Hedging Obligations
with any Bank or the Affiliate of any Bank, such Bank's Ratable Share shall be
proportionately increased and the Ratable Shares of the other Banks shall be
proportionately decreased based upon the amount due to the affected Bank (or
such Bank's Affiliate) pursuant to such agreements. If any Bank shall obtain
any payment hereunder (whether voluntary, involuntary, through exercise of any
right of set-off or otherwise) in excess of its Ratable Share, then such Bank
shall immediately remit such excess to the other Banks pro rata.
11.12 Actions by the Administrative Agent and the Banks. The
-------------------------------------------------
Administrative Agent shall take formal action following the occurrence of a
Possible Default or an Event of Default only upon the agreement of the Required
Banks; provided, however, that if the Administrative Agent gives notice to the
-------- -------
Banks of a Possible Default or an Event of Default, and the Required Banks
cannot agree (which agreement shall not be unreasonably withheld) on a mutual
course of action within ten days following such notice, the Administrative Agent
may (but shall not be required to) pursue such legal rights and remedies against
the Borrowers as it deems necessary and appropriate to protect the Banks and any
collateral under the circumstances.
SECTION 12. MISCELLANEOUS.
-------------
12.1 Construction. The provisions of this Agreement shall be in
------------
addition to those of the Collateral Documents and to those of any other
guaranty, security agreement, note or other evidence of the liability relating
96
to the Borrowers held by the Banks, all of which shall be construed as
complementary to each other. Nothing contained herein shall prevent the
Administrative Agent or the Banks from enforcing any or all of such instruments
in accordance with their respective terms. Each right, power or privilege
specified or referred to in this Agreement or in any Collateral Document is in
addition to any other rights, powers or privileges that the Administrative Agent
or the Banks may otherwise have or acquire by operation of law, by other
contract or otherwise. No course of dealing in respect of, nor any omission or
delay in the exercise of, any right, power or privilege by the Administrative
Agent or the Banks shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any further or other exercise thereof or of
any other, as each right, power or privilege may be exercised independently or
concurrently with others and as often and in such order as the Administrative
Agent or the Banks may deem expedient. Notwithstanding any other provision of
this Agreement, the Borrowers shall not be required to pay any amount of
interest pursuant hereto or pursuant to the Notes which is in excess of the
maximum amount permitted by law.
12.2 Further Assurance. From time to time, the Borrowers shall, and
-----------------
shall cause their Subsidiaries to, execute and deliver to the Administrative
Agent and the Banks such additional documents and take such additional actions
as the Administrative Agent may require to carry out the purposes of this
Agreement or any of the Collateral Documents, or to preserve and protect the
rights of the Administrative Agent and the Banks hereunder or thereunder.
12.3 Expenses of the Administrative Agent, Syndication Agent and the
---------------------------------------------------------------
Banks; Indemnification.
----------------------
(a) Whether or not the transactions contemplated by this
Agreement are consummated, the Borrowers shall pay the costs and expenses,
including the reasonable fees and disbursements of the Administrative Agent's
special counsel and the Syndication Agent's special counsel, incurred by the
Administrative Agent, the Syndication Agent and the Banks in connection with (i)
the negotiation, preparation, administration, amendment or enforcement of this
Agreement and the Collateral Documents and the closing of the transactions
contemplated hereby and thereby; (ii) the perfection of the Liens granted
pursuant hereto or pursuant to the Collateral Documents; (iii) the making of the
Loans and issuance of the Letters of Credit hereunder; (iv) the negotiation,
preparation or enforcement of any other document in connection with this
Agreement, the Collateral Documents or the Loans made hereunder; (v) any
97
proceeding brought or formal action taken by the Administrative Agent or the
Banks to enforce any provision of this Agreement or any Collateral Document, or
to enforce or exercise or preserve any right, power or remedy hereunder or
thereunder; or (vi) any action which may be taken or instituted by any Person
against the Administrative Agent, the Syndication Agent or any Bank as a result
of any of the foregoing. The fees and expenses of the Administrative Agent's
special counsel and of the Syndication Agent's special counsel through the
Closing shall be paid on the Closing Date. If any taxes, charges or fees shall
be payable, or ruled to be payable, to any state or Federal authority in respect
of the execution, delivery or performance of this Agreement, any Note or any
other Collateral Document by reason of any existing or hereinafter enacted
Federal or state statute (other than any such taxes on the net income of the
Banks and any taxes, charges or fees which are included in the LIBOR Reserve
Percentage), the Borrowers will pay all such taxes, charges or fees, including
interest and penalties thereon, if any, and will indemnify ad hold harmless the
Administrative Agent, the Syndication Agent and the Banks against any liability
in connection therewith.
(b) The Borrowers hereby, jointly and severally, indemnify and
hold harmless the Administrative Agent, the Syndication Agent and each Bank and
their respective directors, officers, employees, agents, counsel, subsidiaries
and affiliates (the "Indemnified Persons") from and against any and all claims,
losses, liabilities, obligations, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever (including
reasonable attorneys fees) which may be imposed on, incurred by, or asserted
against any Indemnified Person in any way relating to or arising out of this
Agreement, the Collateral Documents, or any of them, or the Loans made pursuant
hereto or the Letters of Credit issued pursuant hereto, or the use of the
proceeds thereof, or any of the transactions contemplated hereby or thereby or
the business, assets or operations of the Borrowers or their Subsidiaries or the
ownership, maintenance, operation or management of the Towers; provided,
--------
however, that the Borrowers shall not be liable to any Indemnified Person, if
-------
there is a final non-appealable judicial determination that such claims, losses,
liabilities, obligations, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulted solely from the gross negligence or willful
misconduct of such Indemnified Person.
12.4 Notices. Except as otherwise expressly provided herein, all
-------
notices, demands and requests required
98
or permitted to be given under the provisions of this Agreement shall be in
writing and shall be deemed to have been duly delivered and received (a) on the
date of personal delivery, (b) on the date of receipt (as shown on the return
receipt) if mailed by registered or certified mail, postage prepaid and return
receipt requested, (c) on the next business day after delivery to a courier
service that guarantees delivery on the next business day if the conditions to
the courier's guarantee are complied with, or (d) on the date of receipt (if
such date is a Banking Day, otherwise on the next Banking Day) by telecopy, in
each case addressed as follows:
TO THE ADMINISTRATIVE AGENT:
Key Corporate Capital Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Media and Telecommunications Finance Division
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Copy to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Telecopy: 202-776-2222
TO THE BANKS, AT THE ADDRESSES LISTED ON THE SIGNATURE PAGES HEREOF OR
IN THE ASSIGNMENT INSTRUMENT DELIVERED PURSUANT TO Section 12.7(b)
TO THE BORROWERS:
c/o Crown Communication Inc.
Southpointe
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with copies to:
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
99
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
and:
E. ▇▇▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address or addresses as the party to which such notice is
directed may have designated in writing to the other parties hereto.
12.5 Waiver and Release by the Borrowers. Neither the Administrative
-----------------------------------
Agent, nor the Syndication Agent, nor any Bank, nor any Affiliate, officer,
director, employee, attorney or agent of the Administrative Agent, the
Syndication Agent or any Bank shall have any liability with respect to, and the
Borrowers hereby waive, release and agree not to ▇▇▇ any of them upon, any claim
for any special, indirect, incidental or consequential damages suffered or
incurred by either Borrower or any of their Subsidiaries in connection with,
arising out of, or in any way related to, this Agreement or any of the
Collateral Documents, or any of the transactions contemplated by this Agreement
or any of the Collateral Documents, unless arising from the gross negligence or
willful misconduct of such Person as determined by a final non-appealable
judgment of a court of competent jurisdiction, and the Borrowers hereby release
the Administrative Agent, the Syndication Agent and each Bank from, and hereby
waive, all claims for loss or damage caused by any act or omission on the part
of the Administrative Agent, the Syndication Agent or any Bank or their
respective officers, attorneys, agents and employees, except gross negligence
and willful misconduct.
12.6 Right of Set Off. Upon the occurrence and during the
----------------
continuance of any Event of Default, each Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Bank or
an Affiliate of such Bank to or for the credit or the account of either Borrower
or any of their Subsidiaries against any and all of the obligations of the
Borrowers and their Subsidiaries now or hereafter existing hereunder or under
any Collateral Document, irrespective of whether or not such Bank shall have
made any demand hereunder or under any Collateral
100
Document and although such obligations may be unmatured. The rights of the Banks
under this Section are in addition to other rights and remedies (including
without limitation, other rights of set-off) which the Banks may have. The
Borrowers agree, to the fullest extent they may effectively do so under
applicable law, that any other holder of a participation in any Note may
exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrowers or any of their Subsidiaries in the amount of such
participation.
12.7 Successors and Assigns; Participations.
--------------------------------------
(a) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party; provided, however, that neither Borrower shall assign or
-------- -------
transfer any of rights or obligations hereunder or under any Note without the
prior written consent of all of the Banks and the Administrative Agent.
(b) Each Bank may assign all or any part of any of its Loans,
its Notes, and its share of the Reducing Commitment and the Letters of Credit
with the consent of the Borrowers and the Administrative Agent, which consent
shall not be unreasonably withheld; provided that (i) no such consent by the
Borrowers shall be required (A) for any such assignment by any Bank to an
Affiliate of such Bank, (B) if, at the time of such assignment, an Event of
Default or Possible Default has occurred and is continuing, (C) in the case of
any assignment to another branch or a principal office of a Bank, or (D) for any
such assignment to another Bank or an Affiliate of another Bank; (ii) any such
partial assignment shall be in an amount at least equal to $5,000,000; and (iii)
each such assignment shall be made by a Bank in such manner that the same
portion of its Loans, its Notes, its share of the Reducing Commitment and its
participation in the Letters of Credit is assigned to the assignee. Upon
execution and delivery by the assignor and the assignee to the Borrowers and the
Administrative Agent of an instrument in writing pursuant to which such assignee
agrees to become a "Bank" hereunder (if not already a Bank) having the share of
the Reducing Commitment, Loans and Letters of Credit specified in such
instrument, and upon consent thereto by the Administrative Agent and the
Borrowers (to the extent required), the assignee shall have, to the extent of
such assignment (unless otherwise provided in such assignment with the consent
of the Administrative Agent), the obligations, rights and benefits of a Bank
hereunder holding the share of the Reducing Commitment,
101
Loans and Letters of Credit specified in such instrument, and upon consent
thereto by the Administrative Agent and the Borrowers (to the extent required),
the assignee shall have, to the extent of such assignment (unless otherwise
provided in such assignment with the consent of the Administrative Agent), the
obligations, rights and benefits of a Bank hereunder holding the share of the
Reducing Commitment, Loans and Letters of Credit (or portions thereof) assigned
to it (in addition to the share of the Reducing Commitment, Loans and Letters of
Credit, if any, theretofore held by such assignee) and the assigning Bank shall,
to the extent of such assignment, be released from the share of the Reducing
Commitment, the Letters of Credit and the obligations hereunder so assigned.
(c) Upon its receipt of an assignment pursuant to Section 12.7(b)
above duly executed by an assigning Bank and the assignee, together with any
Note subject to such assignment and, in respect of any assignment after
September 30, 1998, a processing and recordation fee of $3,500, the
Administrative Agent shall, if such assignment has been completed, accept such
assignment. Within five business days after receipt of such notice, the
Borrowers, at the Borrowers' own expense, shall execute and deliver to the
Administrative Agent in exchange for each surrendered Note a new Note to the
order of the assignee in an amount equal to the share of the Reducing
Commitment, of the Loans and of the Letters of Credit assumed by the assignee
and, if the assigning Bank has retained a portion of the Reducing Commitment,
the Loans and the Letters of Credit hereunder, a new Note to the order of the
assigning Bank in an amount equal to the share of the Reducing Commitment and
the Loans retained by it hereunder. Such new Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Notes, shall be dated the effective date of such assignment and shall otherwise
be in substantially the form of Exhibit A hereto. Cancelled Notes shall be
---------
returned to the Borrowers.
(d) A Bank may sell or agree to sell to one or more other Persons
(each, a "Participant") a participation in all or any part of any Loans held by
it, or in its share of the Reducing Commitment and the Letters of Credit.
Except as otherwise provided in the last sentence of this Section 12.7(d), no
Participant shall have any rights or benefits under this Agreement or any Note
or any other Collateral Documents (the Participant's rights against such Bank in
respect of such participation to be those set forth in the agreements executed
by such Bank in favor of the Participant). All amounts payable by the Borrowers
to any Bank under Section 2 hereof in respect of Loans held by it, and its share
of the Reducing Commitment, shall be determined as if such Bank had not sold or
agreed to sell any participations in such Loans and share of the Reducing
Commitment, and as if such Bank were funding each of such Loans and its share of
the Reducing Commitment in the same way that it is funding the portion of such
Loans and its share of the Reducing Commitment in which no participations
102
have been sold. In no event shall a Bank that sells a participation agree with
the Participant to take or refrain from taking any action hereunder or under any
other Collateral Document except that such Bank may agree with the Participant
that it will not, without the consent of the Participant, agree to any
modification, supplement or waiver hereof or of any of the other Collateral
Documents to the extent that the same, under Section 12.14 hereof, requires the
consent of each Bank. The Borrowers agree that each Participant shall be
entitled to the benefits of Sections 2.6 through 2.13 and Section 12.6 with
respect to its participating interest.
(e) In addition to the assignments and participations permitted
under the foregoing provisions of this Section 12.7, any Bank may assign and
pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank
as collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Bank from its obligations
hereunder.
(f) A Bank may furnish any information concerning the Borrowers
and their Subsidiaries in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants).
(g) Anything in this Section 12.7 to the contrary
notwithstanding, no Bank may assign or participate any interest in any Loan held
by it hereunder to either Borrower or any of its Affiliates without the prior
written consent of each Bank.
12.8 APPLICABLE LAW. THIS AGREEMENT AND THE COLLATERAL DOCUMENTS,
--------------
AND THE DUTIES, RIGHTS, POWERS AND REMEDIES OF THE PARTIES HERETO AND THERETO,
SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF
OHIO (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF), EXCEPT TO THE
EXTENT THAT ANY COLLATERAL DOCUMENT PROVIDES THAT THE LOCAL LAW OF ANOTHER
JURISDICTION GOVERNS THE GRANT, PERFECTION OR ENFORCEMENT OF THE LIENS GRANTED
PURSUANT TO SUCH COLLATERAL DOCUMENT. THE PROVISIONS OF THIS SECTION HAVE BEEN
FULLY DISCUSSED BY THE BORROWERS AND THE AGENT ON BEHALF OF THE BANKS AND SHALL
BE SUBJECT TO NO EXCEPTIONS. THE BORROWERS HAVE MADE THIS CHOICE OF GOVERNING
LAW KNOWINGLY AND WILLINGLY AND AFTER CONSULTING WITH THEIR COUNSEL. NONE OF
THE AGENT, ANY BANK NOR THE BORROWERS HAVE AGREED WITH OR REPRESENTED TO ANY
103
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
12.9 ENFORCEMENT. EACH BORROWER (A) HEREBY IRREVOCABLY SUBMITS TO THE
-----------
JURISDICTION OF THE STATE COURTS OF THE STATE OF OHIO AND TO THE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, FOR THE
PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON
THIS AGREEMENT OR ANY COLLATERAL DOCUMENT OR THE SUBJECT MATTER HEREOF OR
THEREOF BROUGHT BY THE AGENT OR THE BANKS OR THEIR SUCCESSORS OR ASSIGNS AND (B)
HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR
OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT
SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS
PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION
OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS AGREEMENT OR ANY COLLATERAL
DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE ENFORCED IN OR BY
SUCH COURT, AND (C) HEREBY WAIVES AND AGREES NOT TO SEEK ANY REVIEW BY ANY COURT
OF ANY OTHER JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF
THE JUDGMENT OF ANY SUCH OHIO STATE OR FEDERAL COURT. EACH BORROWER HEREBY
CONSENTS TO SERVICE OF PROCESS BY REGISTERED MAIL AT THE ADDRESS TO WHICH
NOTICES ARE TO BE GIVEN. EACH BORROWER AGREES THAT ITS SUBMISSION TO
JURISDICTION AND ITS CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE
EXPRESS BENEFIT OF THE AGENT AND THE BANKS. FINAL JUDGMENT AGAINST THE
BORROWERS IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, OR IN ANY OTHER
MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF SUCH OTHER JURISDICTION; PROVIDED,
--------
HOWEVER, THAT THE AGENT OR THE BANKS MAY AT THEIR OPTION BRING SUIT, OR
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INSTITUTE OTHER JUDICIAL PROCEEDINGS, AGAINST EITHER BORROWER OR ANY OF ITS
ASSETS IN ANY ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ OR OF ANY COUNTRY OR
PLACE WHERE SUCH BORROWER, OR SUCH ASSETS, MAY BE FOUND.
12.10 JURY TRIAL WAIVER. THE BORROWERS, THE AGENT AND THE BANKS EACH
-----------------
WAIVE IRREVOCABLY, TO THE EXTENT PERMITTED BY LAW, ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BETWEEN THE BANKS AND THE BORROWERS ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THIS AGREEMENT OR THE NOTES OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED HERETO AND THERETO. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-
ENCOMPASSING
104
OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY,
INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE BORROWERS, THE AGENT
AND THE BANKS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER
INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN
ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER
IN THEIR RELATED FUTURE DEALINGS. THE BORROWERS, THE AGENT AND THE BANKS FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL,
AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (UNLESS EXPRESSLY MODIFIED IN
WRITING BY ALL PARIES HERETO), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, THE COLLATERAL DOCUMENTS AND TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
12.11 Binding Effect and Entire Agreement; No Oral Agreements. This
-------------------------------------------------------
Agreement shall inure to the benefit of, and shall be binding upon, the
respective successors and permitted assigns of the parties hereto. This
Agreement, the Schedules and Exhibits hereto, which are hereby incorporated in
this Agreement, and the Collateral Documents constitute the entire agreement
among the parties on the subject matter hereof. There are no unwritten or oral
agreements between the Borrowers and the Banks, and this written Agreement, the
Notes, the other Collateral Documents, and the instruments and documents
executed in connection herewith, represent the final agreement between the
parties and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties.
12.12 Counterparts. This Agreement may be executed in any number of
------------
counterparts or duplicate originals, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
12.13 Survival of Agreements. All covenants, agreements,
----------------------
representations and warranties made herein or in any Collateral Document shall
survive any investigation and the Closing, and shall continue in full force and
effect so long as any of the Obligations remain to be performed or paid or the
Banks have any obligation to advance sums or
105
issue Letters of Credit hereunder or any Letter of Credit remains outstanding.
12.14 Modification. Any term of this Agreement or of any Note may be
------------
amended and the observance of any term of this Agreement or of any Note may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only with the written consent of the Borrower and the Required
Banks, and any amendment or waiver effected in accordance with this Section
12.14 shall be binding upon each holder of a Note at the time outstanding, each
future holder of a Note and the Borrowers; provided, however, that no such
-------- -------
amendment or waiver or other action shall, without the prior written consent of
all of the Banks or the holders of all of the Notes at the time outstanding, (a)
extend the maturity or reduce the principal amount of, or reduce the rate or
extend the time of payment of interest on, or reduce the amount or extend the
time of payment of any principal installment of, any Note, (b) reduce the amount
or extend the time of payment of the commitment fees or the fees shared by the
Banks and payable in respect of Letters of Credit, (c) change the Reducing
Commitment or the Ratable Share of any Bank (other than any change in Reducing
Commitment or Ratable Share resulting from the sale of a participation in or
assignment of any Bank's interest in the Reducing Commitment and Loans in
accordance with Section 12.7), (d) change the percentage referred to in the
definition of "Required Banks" contained in Section 1.1, or reduce the number of
Banks required to approve any waiver, amendment or modification, (e) amend this
Section 12.14, (f) amend or waive compliance with Section 2.5(b), or (g) release
any collateral or any guaranty for the Loans except for collateral which the
Borrowers are not prohibited pursuant hereto from selling; and provided,
--------
further, that notwith standing the foregoing provisions of this Section 12.14,
-------
this Agreement and the Notes may be amended or modified in the manner
contemplated by Section 12.7 for the purpose of permitting any Bank to assign
its interest, rights and obligations hereunder to another Person, if the
appropriate assignment agreement or counterparts thereof are executed by the
Borrowers (to the extent required), the Administrative Agent and the appropriate
Bank assignor and assignee. Any amendment or waiver effected in accordance with
this Section 12.14 shall be binding upon each holder of any Note at the time
outstanding, each future holder of any Note and the Borrowers.
12.15 Separability. If any one or more of the provisions contained
------------
in this Agreement or any Collateral Document should be invalid, illegal or
unenforceable in any
106
respect, the validity, legality and enforceability of all remaining provisions
shall not in any way be affected or impaired. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
12.16 Section Headings. The Section headings contained herein are
----------------
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12.17 Termination. This Agreement shall terminate when all amounts
-----------
due hereunder, under each Note and under each Collateral Document shall have
been indefeasibly paid in full in cash and all other Obligations hereunder or
thereunder shall have been fully performed, so long as no Letters of Credit are
then outstanding and the Banks have no further obligation to advance sums or
issue Letters of Credit hereunder. Notwithstanding the foregoing, this
Agreement shall continue to be effective or be reinstated and relate back to
such time as though this Agreement had always been in effect, as the case may
be, if at any time any amount received by the Administrative Agent or any Bank
in respect of the Obligations is rescinded or must otherwise be restored or
returned by such Bank upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of either Borrower or any of their Subsidiaries or upon the
appointment of any intervenor or conservator of, or trustee or similar official
for, either Borrower or any of their Subsidiaries or any substantial part of its
properties, or otherwise, all as though such payments had not been made.
Notwithstanding anything to the contrary contained herein or in any Collateral
Document, any indemnification or expense reimbursement provision contained
herein or in any Collateral Document shall remain in full force and effect
notwithstanding the termination of this Agreement.
12.18 Interest Limitation. It is the intention of the Borrowers and
-------------------
the Banks to conform strictly to the respective usury laws applicable to the
Banks. Accordingly, if the transactions contemplated hereby would be usurious
under applicable law as to any Bank, then, in that event, notwithstanding
anything to the contrary in the Notes or this Agreement or in any other
Collateral Document, it is agreed as follows: (a) the aggregate of all
consideration which constitutes interest under law applicable to such Bank that
is contracted for, taken, reserved, charged or received
107
under any Note payable to such Bank or this Agreement or under any other
Collateral Document or otherwise in connection with such Note shall under no
circumstances exceed the maximum amount allowed by such law (or, if the
principal amount of such Note shall have been or would thereby be paid in full,
refunded to the Borrowers); and (b) in the event that the maturity of any Note
payable to a Bank is accelerated or in the event of any required or permitted
prepayment, then such consideration that constitutes interest under law
applicable to such Bank may never include more than the maximum amount allowed
by such applicable law, and excess interest, if any, provided for in this
Agreement or otherwise shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited by such
Bank on the principal amount of such Note (or, if the principal amount of such
Note shall have been or would thereby be paid in full, refunded by such Bank to
the Borrowers). All calculations made to compute the rate of interest that is
contracted for, taken, reserved, charged or received under any Note payable to
any Bank or under this Agreement or under any other Collateral Document or
otherwise in connection with such Note for the purpose of determining whether
such rate exceeds the maximum amount allowed by law applicable to such Bank
shall be made, to the extent permitted by such applicable law, by amortizing,
prorating, and spreading in qual parts during the period of the full stated term
of the Loan or Loans evidenced by such Note all interest at any time contracted
for, taken, reserved, charged or received by such Bank in connection therewith.
12.19 DTPA Waiver. TO THE MAXIMUM EXTENT NOT PROHIBITED BY
-----------
APPLICABLE LAW FROM TIME TO TIME IN EFFECT, THE BORROWERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY (AND AFTER THE BORROWERS HAVE CONSULTED WITH THEIR
OWN ATTORNEY), IRREVOCABLY AND UNCONDITIONALLY WAIVE THE PROVISIONS OF THE TEXAS
DECEPTIVE TRADE PRACTICES -CONSUMER PROTECTION ACT (TEXAS BUSINESS AND COMMERCE
CODE, CHAPTER 17, SECTION 17.41 - 17.63).
108
TO WITNESS THE ABOVE, the Borrowers, the Banks, the Administrative
Agent and the Syndication Agent have caused this Loan Agreement to be executed
by their respective representatives thereunto duly authorized as of the date
first above written.
BORROWERS:
CROWN COMMUNICATION INC.
By:___________________________
Name:_________________________
Title:________________________
CROWN CASTLE INTERNATIONAL CORP. DE PUERTO RICO
By:___________________________
Name:_________________________
Title:________________________
ADMINISTRATIVE AGENT AND DOCUMENTATION AGENT:
KEY CORPORATE CAPITAL INC.
By:___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SYNDICATION AGENT:
PNC BANK, NATIONAL ASSOCIATION
By:___________________________
Name: _______________________
Title: _______________________
ISSUING BANK:
KEY CORPORATE CAPITAL INC.
109
By:___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANKS:
KEY CORPORATE CAPITAL INC.
By:___________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Media and Telecommunications Finance Division
PNC BANK, NATIONAL ASSOCIATION
By:___________________________
Name: _______________________
Title: _______________________
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
LIST OF SCHEDULES AND EXHIBITS
------------------------------
Schedule 1.1 List of Banks and Ratable Shares
Exhibit A Form of Reducing Note
Exhibit B Financial Statements
Exhibit C Projections
Exhibit D Capitalization and Subsidiaries
Exhibit E Proceedings, Litigation and Non-Compliance with
Law
Exhibit F Liens and Indebtedness
Exhibit G List of Contracts, Commitments and Licenses
Exhibit H ERISA Liabilities and Plans
Exhibit I Real Property List
Exhibit J Form of Compliance Certificate
SCHEDULE 1.1
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List of Banks and Ratable Shares
--------------------------------
Bank: Ratable Share:
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Key Corporate Capital Inc. 50%
PNC Bank, National Association 50%