EXHIBIT 10.7
EXECUTION COPY
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BRIDGE LOAN AND
OVERRIDE AGREEMENT
BY AND AMONG
GLOBAL SIGNAL ACQUISITIONS II LLC,
AS BORROWER,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
BANK OF AMERICA, N.A.,
AS CO-ADMINISTRATIVE AGENT AND CALCULATION AGENT,
AND
MORGAN STANLEY ASSET FUNDING INC.,
AS CO-ADMINISTRATIVE AGENT AND COLLATERAL AGENT
DATED AS OF MAY 26, 2005
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TABLE OF CONTENTS
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ARTICLE A
INCORPORATION AND OVERRIDE PROVISIONS
Section A.1
General Override Provision
2
Section A.2
Particular Sections
2
ARTICLE I
DEFINITIONS
Section 1.1
Certain Defined Terms..........................................2
ARTICLE II
TERMS OF THE LOANS AND COMMITMENTS
Section 2.1
Loan Commitments..............................................16
Section 2.2
Procedure for Borrowing.......................................17
Section 2.3
Interest Rates and Payment Dates..............................17
Section 2.4
Repayment of Loans; Evidence of Debt..........................18
Section 2.5
Extension of Maturity Date....................................19
Section 2.6
[Reserved]....................................................19
Section 2.7
Optional Prepayment...........................................19
Section 2.8
Mandatory Prepayments.........................................20
Section 2.9
Computation of Interest and Fees..............................20
Section 2.10
Inability to Determine Interest Rate..........................21
Section 2.11
Pro Rata Treatment and Payments...............................21
Section 2.12
Illegality....................................................22
Section 2.13
Requirements of Law...........................................22
Section 2.14
Taxes.........................................................24
Section 2.15
Breakage......................................................28
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1
Additional Conditions.........................................28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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Section 4.1
Additional Representations and Warranties.....................30
ARTICLE V
COVENANTS
Section 5.1
Additional Covenants..........................................31
ARTICLE VI
[RESERVED]
ARTICLE VII
[RESERVED]
ARTICLE VIII
ADDITIONAL EVENTS OF DEFAULT
Section 8.1
Event of Default..............................................36
ARTICLE IX
[RESERVED]
ARTICLE X
PLEDGE OF OTHER COMPANY COLLATERAL
ARTICLE XI
[RESERVED]
ARTICLE XII
[RESERVED]
ARTICLE XIII
[RESERVED]
ARTICLE XIIIA THE AGENTS
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Section 13A.1
Appointment...................................................39
Section 13A.2
Delegation of Duties..........................................40
Section 13A.3
Exculpatory Provisions........................................40
Section 13A.4
Reliance by Agents............................................40
Section 13A.5
Notice of Default.............................................41
Section 13A.6
Non-Reliance on Agents and Other Lenders......................41
Section 13A.7
Indemnification...............................................41
Section 13A.8
Agents in Their Individual Capacity...........................42
Section 13A.9
Successor Agents..............................................42
ARTICLE XIV
MISCELLANEOUS
Section 14.1
Amendments and Waivers........................................43
Section 14.2
Notices.......................................................43
Section 14.3
Successors and Assigns; Participations and Assignments........45
Section 14.4
Adjustments; Set off..........................................49
Section 14.5
Indemnification and Expenses..................................49
Section 14.6
GOVERNING LAW.................................................51
Section 14.7
Submission To Jurisdiction; Waivers...........................51
Section 14.8
Confidentiality...............................................51
Section 14.9
Takeout Financing; Securitization Loan Agreements.............52
Section 14.10
No Recourse Against Conduit Lenders...........................52
Section 14.11
Program Support Providers.....................................53
Section 14.12
Limited Recourse to Certain Loan Parties......................53
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SCHEDULES
Schedule A.2
Inoperative Provisions of the Securitization Loan Agreement
Form
Schedule 2.1
Loan Commitment Percentages, Applicable Lending Offices and
Notice Addresses
Schedule 1.1
Replaced Terms
Schedule 4.1
Filing Offices
Schedule 5.1(d)
Allocated Purchase Price
Schedule 14.3
Competitors
EXHIBITS
Exhibit A
Securitization Loan Agreement Form
Exhibit B
Form of Note
Exhibit C
Form of Assignment and Acceptance
Exhibit D
Form of Limited Recourse Parent Guarantee
Exhibit E
Section 2.14 Certificate
Exhibit F
[Intentionally omitted.]
Exhibit G
Form of Subsidiary Guarantee
Exhibit H
Form of Pledge Agreement
Exhibit I
Form of Title Policy
Exhibit J
Form of Legal Opinion
ANNEXES
Annex I
Form of Notice of Borrowing
Annex II
Form of Notice of Prepayment
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BRIDGE LOAN AND OVERRIDE AGREEMENT
BRIDGE LOAN AND OVERRIDE AGREEMENT, dated as of May 26, 2005
(including, without limitation, the terms of the Securitization
Loan Agreement
Form referenced herein to the extent incorporated herein, this
"AGREEMENT"), by
and among Global Signal Acquisitions II LLC, a Delaware limited
liability
company (the "BORROWER"), the lenders from time to time parties to
this
Agreement (the "LENDERS"), Bank of America, N.A. ("BANA"), as
co-administrative
agent and calculation agent, and Morgan Stanley Asset Funding Inc.
("MSAFI"), as
co-administrative agent and collateral agent for the Lenders
hereunder and under
the other Loan Documents (as defined below).
RECITALS
WHEREAS, Global Signal Inc., a Delaware corporation and the
ultimate
parent company of the Borrower ("GLOBAL SIGNAL"), has entered into
that certain
Agreement to Contribute, Lease and Sublease, dated as of February
14, 2005 (as
the same may be amended, the "AGREEMENT TO LEASE AND SUBLEASE"),
among Sprint
Corporation, a Kansas corporation ("SPRINT"), certain subsidiaries
of Sprint
(the "CONTRIBUTORS") and Global Signal, pursuant to which the
Contributors have
agreed to contribute a portfolio of wireless communication towers
to one or more
newly formed, bankruptcy-remote special purpose subsidiaries of
Sprint
(collectively, the "SPRINT SPV"), and ultimately to sublease
(and/or permit the
Borrower to operate) such towers to the Borrower for the Borrower
to operate
such towers for a period of up to 32 years under one or more Master
Lease and
Subleases (as the same may be amended, collectively, the "LEASE
AGREEMENT") to
be entered into by and among the Sprint SPV, as Lessor, the
Borrower, as Lessee,
Sprint, the Contributors and Global Signal (the Agreement to Lease
and Sublease
and the Lease Agreement are collectively referred to herein as the
"SPRINT
ACQUISITION DOCUMENTS" and the contribution and leasing of such
towers by the
Borrower pursuant to the Sprint Acquisition Documents being
referred to herein
as the "SPRINT ACQUISITION").
WHEREAS, pursuant to the Sprint Acquisition Documents,
simultaneously
with the consummation of the Sprint Acquisition, the Equity
Investors will
contribute (the "EQUITY CONTRIBUTION") approximately $250,000,000
to the
Borrower.
WHEREAS, the Borrower has requested that the Lenders extend a term
loan to the Borrower in an amount not to exceed the Aggregate Loan
Commitment
(as hereinafter defined), the proceeds of which will be used to
provide a
portion of the financing of the Sprint Acquisition.
WHEREAS, the Borrower and the Lenders desire that the Loans be
refinanced on or prior to the Maturity Date (as hereinafter
defined) through an
assignment of the Loans to a new lender pursuant to a whole loan
securitization
transaction (the "SECURITIZATION") on terms and conditions
substantially as set
forth in the form of the Amended and Restated Loan and Security
Agreement
attached hereto as EXHIBIT A (as modified pursuant to this
Agreement, the
"SECURITIZATION LOAN AGREEMENT FORM").
WHEREAS, to facilitate the assignment of the Loans pursuant to the
Securitization, the Borrower has requested that the Securitization
Loan
Agreement Form govern the terms and conditions of the Loans, as
modified by this
Agreement.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby
acknowledged, the Borrower, the Lenders and the Agents hereby agree
as follows:
ARTICLE A
INCORPORATION AND OVERRIDE PROVISIONS
Section A.1 General Override Provision. The parties hereto hereby
agree to make loans to the Borrower on the terms of the
Securitization Loan
Agreement Form, and hereby agree that the Securitization Loan
Agreement Form is
hereby incorporated herein in its entirety as if it were set forth
directly
herein and forms part of this Agreement, in each case as modified
as set forth
in this Agreement and subject to the override set forth in the
following
sentence. Notwithstanding any provision of the Securitization Loan
Agreement
Form to the contrary, the provisions of this Agreement shall
control and to the
extent of a conflict with the provisions of the Securitization Loan
Agreement
Form respecting such matters, the terms and conditions of this
Agreement shall
override such provisions of the Securitization Loan Agreement Form.
Section A.2 Particular Sections. Notwithstanding the foregoing, the
provisions of the Securitization Loan Agreement Form listed on
SCHEDULE A.2 (the
"INOPERATIVE PROVISIONS") shall not be incorporated herein or form
part of this
Agreement and shall have no force or effect until, if and when, the
occurrence
of the Securitization, pursuant to SECTION 14.9.
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms. (a) The terms defined below are
used in this Agreement as so defined.
"ACQUISITION": the Sprint Acquisition and any other acquisition by
the
Borrower of (i) Towers, (ii) all of the Capital Stock of any Person
that holds
Towers as a principal asset, and/or (iii) a fee, easement, or long
term ground
lease interest in real property upon which wireless communications
towers are,
or are to be, located.
"ADMINISTRATIVE AGENTS": the BANA Administrative Agent and the
Morgan
Stanley Administrative Agent; each, an "Administrative Agent".
"AGENTS": collectively, the Administrative Agents, the Calculation
Agent and the Collateral Agent.
"AGGREGATE ACQUISITION PRICE": the aggregate Rent and Pre-Lease
Rent
to be prepaid by the Borrower to the Sprint SPV on the Effective
Date (as
defined in the Lease
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Agreement) pursuant to Section 11(a) of the Lease Agreement,
together with (i)
reasonable and customary transaction costs (including commissions),
(ii) the
reasonable fees and expenses of counsel to the Borrower for
services rendered in
connection with the Sprint Acquisition and (iii) the amount of
taxes that are
payable by the Borrower as a result of the Sprint Acquisition, in
an amount not
to exceed $45,000,000 in the aggregate for all items described in
clauses (i)
through (iii).
"AGGREGATE LOAN COMMITMENT": the lesser of (a) $850,000,000 and (b)
70% of the Aggregate Acquisition Price.
"AGREEMENT": as defined in the preamble to this Agreement.
"AGREEMENT TO LEASE AND SUBLEASE": as defined in the first recital
to
this Agreement.
"APPLICABLE LENDING OFFICE": for each Lender, the lending office of
such Lender designated for each Type of Loan on SCHEDULE 2.1 hereto
(or any
other lending office from time to time notified to its
Administrative Agent by
such Lender) as the office at which its Loans are to be made and
maintained.
"APPLICABLE MARGIN": for any Loan of any Type on any day, (i)
during
the period from the Closing Date through October 20, 2005, 1.50%
per annum in
the case of Eurodollar Loans, and 1.50% in the case of Base Rate
Loans, and (ii)
thereafter, the applicable rate per annum set forth below, based
upon the Net
Tower Cash Flow as of October 20, 2005 (the levels of Net Tower
Cash Flow and
Applicable Margin are set forth on the table below and referred to
in this
Agreement as "LEVEL I" and "LEVEL II", respectively):
<TABLE>
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Applicable Margin for
Applicable Margin
Level
Net Tower Cash Flow
Eurodollar Loans
for Base Rate Loans
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Level I
Greater than or equal to
$86,000,000
1.50%
1.50%
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Level II
Less than $86,000,000
1.75%
1.75%
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</TABLE>
; provided that on the date of the first extension of the Maturity
Date pursuant
to SECTION 2.5, the Applicable Margin for Eurodollar Loans and Base
Rate Loans
under both Levels I and II shall each be increased by 0.25%, and on
the date of
the second extension of the Maturity Date pursuant to SECTION 2.5,
the
Applicable Margin for Eurodollar Loans and Base Rate Loans under
Levels I and II
shall each be increased by 0.75% above the Applicable Margin in
effect after the
first extension of the Maturity Date.
"APPROVED FUND": (a) with respect to any Lender, any Bank CLO of
such
Lender, and (b) with respect to any Lender that is a fund that
invests in
commercial loans and similar extensions of credit, any other fund
that invests
in commercial loans and similar
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extensions of credit and is managed by the same investment advisor
as such
Lender or by an Affiliate of such investment advisor.
"ASSET SALE": any sale, lease or other disposition of property or
series of related sales, leases or other dispositions of property
(excluding any
such sale, lease or other disposition permitted by SECTIONS 5.1(G)
(II), (III)
and (IV)).
"ASSIGNEE": as defined in SECTION 14.3(C).
"ASSIGNMENT AND ACCEPTANCE": as defined in SECTION 14.3(C).
"BANA": as defined in the preamble to this Agreement.
"BANA ADMINISTRATIVE AGENT": BANA in its capacity as
co-administrative
agent hereunder for the BANA Syndicate, and any successor
co-administrative
agent appointed by the BANA Syndicate in accordance with SECTION
13A.9.
"BANA SYNDICATE": BANA, as an Initial Lender under this Agreement,
together with any Assignees of its Loan.
"BANK CLO": as to any Lender, any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making,
purchasing, holding
or otherwise investing in commercial loans and similar extensions
of credit in
the ordinary course of its business and is administered or managed
by such
Lender or an Affiliate of such Lender.
"BASE RATE" means for any day a fluctuating rate per annum equal to
the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the
rate of
interest in effect for such day as publicly announced from time to
time by the
Calculation Agent as its "prime rate." The "prime rate" is a rate
set by the
Calculation Agent based upon various factors including the
Calculation Agent's
costs and desired return, general economic conditions and other
factors, and is
used as a reference point for pricing some loans, which may be
priced at, above,
or below such announced rate. Any change in such rate announced by
the
Calculation Agent shall take effect at the opening of business on
the day
specified in the public announcement of such change.
"BASE RATE LOAN" means a Loan that bears interest based on the Base
Rate.
"BOARD": the Board of Governors of the Federal Reserve System of
the
United States (or any successor).
"BORROWER": as defined in the preamble to this Agreement.
"CALCULATION AGENT": so long as BANA is an Administrative Agent,
BANA,
and if BANA is not an Administrative Agent, such other
Administrative Agent
selected by the Required Lenders.
"CASH EQUIVALENTS": (a) securities with maturities of 90 days or
less
from the date of acquisition issued or fully guaranteed or insured
by the United
States Government or any agency thereof, (b) certificates of
deposit and
eurodollar time deposits with maturities of 90 days
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or less from the date of acquisition and overnight bank deposits of
any Lender
or of any commercial bank having capital and surplus in excess of
$500,000,000,
(c) repurchase obligations of any Lender or of any commercial bank
satisfying
the requirements of clause (b) of this definition, having a term of
not more
than seven days with respect to securities issued or fully
guaranteed or insured
by the United States Government, (d) commercial paper of a domestic
issuer rated
at least A-1 or the equivalent thereof by S&P or P-1 or the
equivalent thereof
by Moody's and in either case maturing within 90 days after the day
of
acquisition, (e) securities with maturities of 90 days or less from
the date of
acquisition issued or fully guaranteed by any state, commonwealth
or territory
of the United States, by any political subdivision or taxing
authority of any
such state, commonwealth or territory or by any foreign government,
the
securities of which state, commonwealth, territory, political
subdivision,
taxing authority or foreign government (as the case may be) are
rated at least A
by S&P or A by Moody's, (f) securities with maturities of 90
days or less from
the date of acquisition backed by standby letters of credit issued
by any Lender
or any commercial bank satisfying the requirements of clause (b) of
this
definition or (g) shares of money market mutual or similar funds
which invest
exclusively in assets satisfying the requirements of clauses (a)
through (f) of
this definition.
"CHANGE OF CONTROL": the occurrence of any of the following:
(a) the Equity Investors and/or any Person controlled by Fortress
Investment Group LLC or Greenhill Capital Partners, L.P. or any of
their
respective Affiliates shall collectively, directly or indirectly,
cease to own
and/or control in the aggregate (i) at least 51% of the voting
interest in the
Capital Stock of Global Signal or (ii) at least 51% of the voting
and economic
interest (directly or indirectly) in the Capital Stock of GSOP; or
(b) Global Signal shall cease to own at least 51% of the voting and
economic interest in the Capital Stock of GSOP; or
(c) GSOP shall cease to own at least 100% of the voting and
economic
interest in the Capital Stock of the Borrower; or
(d) with respect to any direct or indirect Subsidiary of GSOP, an
event or series of events resulting in GSOP ceasing to own directly
or
indirectly less than 100% of the Capital Stock of such Subsidiary
(other than
pursuant to a dissolution of such Subsidiary); or
(e) an event or series of events by which during any period of 12
consecutive months, a majority of the members of the board of
directors or other
equivalent governing body of Global Signal, GSOP and/or any
Subsidiary of GSOP
cease to be composed of individuals (i) who were members of that
board or
equivalent governing body on the first day of such period, (ii)
whose election
or nomination to that board or equivalent governing body was
approved by
individuals referred to in clause (i) above constituting at the
time of such
election or nomination at least a majority of that board or
equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent
governing body was approved by individuals referred to in clauses
(i) and (ii)
above constituting at the time of such election or nomination at
least a
majority of that board or equivalent governing body (excluding, in
the case of
both clause (ii) and clause (iii), any individual whose initial
nomination for,
or assumption of office as, a
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member of that board or equivalent governing body occurs as a
result of an
actual or threatened solicitation of proxies or consents for the
election or
removal of one or more directors by any person or group other than
a
solicitation for the election of one or more directors by or on
behalf of the
board of directors);
provided that in no event shall the merger of GSOP with or into
Global Signal or
a Subsidiary of Global Signal be deemed a "Change of Control" so
long as the
Required Lenders reasonably determine that such merger is not
adverse to their
interests and provide written notice to the Borrower of the same.
For the
purposes of this definition, "control" of a Person (including, with
its
correlative meanings, "controlled by" and "under common control
with") means the
power, directly or indirectly, either to (a) vote 10% or more of
the securities
having ordinary voting power for the election of directors of such
Person or (b)
direct or cause the direction of the management and policies of
such Person,
whether by contract or otherwise.
"CLOSING DATE": the date on which the conditions precedent set
forth
in ARTICLE III of the Securitization Loan Agreement Form and
ARTICLE III hereof
shall be satisfied or waived.
"COLLATERAL AGENT": MSAFI as collateral agent for the Lenders,
together with any successor Collateral Agent appointed pursuant to
SECTION 13A.9
of this Agreement.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated,
which is under common control with Global Signal or the Borrower
within the
meaning of Section 4001 of ERISA or is part of a group which
includes Global
Signal or the Borrower and which is treated as a single employer
under Section
414(b) or (c) of the IRC or, for purposes of the IRC, Section
414(m) or (o) of
the IRC.
"CONDUIT ASSIGNEE": any special purpose entity that finances its
activities directly or indirectly through asset-backed commercial
paper and is
administered by a Lender or any of its Affiliates and designated by
such Lender
from time to time to accept an assignment from the Conduit Lender
in such
Lender's Syndicate of all or a portion of the Loans.
"CONDUIT LENDER": any special purpose entity administered by any
Lender (or an affiliate of such Lender) which funds Loans hereunder
and has been
designated by such Lender in a written notice to Borrower;
provided, that the
designation by any Lender of a Conduit Lender shall not relieve the
designating
Lender of any of its obligations to fund a Loan under this
Agreement if, for any
reason, its Conduit Lender fails to fund any such Loan, and
provided, further,
that no Conduit Lender shall be deemed to have any Loan Commitment.
Upon the
designation of any Conduit Lender by a Lender, such Conduit Lender
shall have
all of the rights of a "Lender" hereunder and under the other Loan
Documents.
"CONSOLIDATED EBITDA": with respect to any Person and its
consolidated
Subsidiaries for any period of determination, the sum (determined
on a
consolidated basis), without duplication, of (a) net income for
such period,
plus (b) amortization, accretion and depreciation for such period,
plus (c)
interest expense (determined in accordance with GAAP) for such
period, plus (d)
actual taxes based on income for such period, plus (e)
extraordinary losses for
such period, including losses on early extinguishment of debt,
minus (f)
extraordinary
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gains for such period, plus (g) losses on foreign currency exchange
for such
period, minus (h) gains on foreign currency exchange for such
period, plus (i)
for purposes of calculating Consolidated EBITDA of the Borrower,
costs or
amortization expense associated with obtaining title insurance and
mortgaging
and perfecting liens on properties to be mortgaged to the
Collateral Agent, plus
(j) non-cash charges associated with stock-based compensation
expense plus (k)
non-cash accrued straight-line rent expense recorded under SFAS 13
plus (l)
acquisition costs associated with the Sprint Acquisition to the
extent (x) such
costs are not capitalized and (y) such costs are included in the
budget of such
acquisition costs previously provided to the Administrative Agents
in connection
with the Sprint Acquisition, plus (m) asset write-down charges
related to
discontinued operations. For purposes of clauses (b) through (m)
above, such
amounts shall be deducted from, or added to, net income, in each
case only to
the extent such amounts were included in the calculation of net
income; provided
that the calculation of Consolidated EBITDA shall be adjusted to
annualize the
financial results of Towers owned, leased or managed by such Person
and its
Subsidiaries for less than one year as follows: (i) the
Consolidated EBITDA
attributed to any Tower owned, leased or managed by such Person and
its
Subsidiaries for less than one year but greater than or equal to
one month shall
be the Consolidated EBITDA attributed to such Tower for the period
commencing on
the date of the Acquisition of such Tower through the last day of
the most
recently completed month times, a fraction, the numerator of which
is 12 and the
denominator of which is the number of calendar months completed
since the date
of such Acquisition, and (ii) the Consolidated EBITDA for Towers
owned, leased
or managed for less than one month shall be the estimated annual
Consolidated
EBITDA for such Towers based upon the budgeted annualized results
of such Towers
determined in a manner consistent with the methodology set forth in
EXHIBIT F
and adjusted to reflect the financial results of such Towers on a
consolidated
basis (as opposed to a stand-alone per Tower basis).
"CONSOLIDATED INDEBTEDNESS": for any Person and its consolidated
Subsidiaries at such time, the aggregate Indebtedness of such
Person and its
consolidated Subsidiaries determined on a consolidated basis in
accordance with
GAAP.
"CONTINUE", "CONTINUATION" and "CONTINUED": the continuation of a
Eurodollar Loan from one day to the next day.
"CONTRIBUTORS": as defined in the first recital to this Agreement.
"CONVERT", "CONVERSION" and "CONVERTED": a conversion of Eurodollar
Loans into Base Rate Loans, which may be accompanied by the
transfer by a Lender
(at its sole discretion) of a Loan from one Applicable Lending
Office to
another.
"DERIVATIVES COUNTERPARTY": as defined in SECTION 5.1(I).
"EQUITY CONTRIBUTION": as defined in the second recital to this
Agreement.
"EQUITY INVESTORS": Fortress Pinnacle Acquisition LLC, FRIT PINN
LLC
and Greenhill Capital Partners, L.P., Greenhill Capital, L.P.,
Greenhill Capital
Partners (Executives), L.P. and Greenhill Capital Partners
(Cayman), L.P. or any
other Person reasonably acceptable to the Required Lenders.
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"EUROCURRENCY RESERVE REQUIREMENTS": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as
a decimal fraction) of reserve requirements current on such day
(including,
without limitation, basic, supplemental, marginal and emergency
reserves under
any regulations of the Board or other Governmental Authority having
jurisdiction
with respect thereto), as now and from time to time hereafter in
effect, dealing
with reserve requirements prescribed for eurocurrency funding
(currently
referred to as "EUROCURRENCY LIABILITIES" in Regulation D)
maintained by a
member bank of the Federal Reserve System.
"EURODOLLAR RATE": with respect to a Eurodollar Loan, for the First
Interest Period 3.09%, and for any Interest Period thereafter, a
rate per annum
determined by the Calculation Agent pursuant to the following
formula:
Eurodollar Base Rate
Eurodollar Rate = ---------------------------------------------
1.00 - Eurocurrency Reserve Requirements
Where,
"EURODOLLAR BASE RATE" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Calculation
Agent to be the offered rate that appears on the page of the
Telerate
screen 3750 (or any successor thereto) that displays an average
British
Bankers Association Interest Settlement Rate for deposits in
Dollars (for
delivery the first day of such Interest Period) with a term
equivalent to
such Interest Period, determined as of approximately 11:00 a.m.
(London
time) two Business Days prior to the first day of such Interest
Period, or
(b) if the rate referenced in the preceding clause (a) does not
appear
on such page or service or such page or service shall not be
available, the
rate per annum equal to the rate determined by the Calculation
Agent to be
the offered rate on such other page or other service that displays
an
average British Bankers Association Interest Settlement Rate for
deposits
in Dollars (for delivery on the first day of such Interest Period)
with a
term equivalent to such Interest Period, determined as of
approximately
11:00 a.m. (London time) two Business Days prior to the first day
of such
Interest Period, or
(c) if the rates referenced in preceding clauses (a) and (b) are
not
available, the rate per annum equal to the rate determined by the
Calculation Agent as the rate of interest at which deposits in
Dollars for
delivery on the first day of such Interest Period in same day funds
in the
approximate amount of the Eurodollar Loan being made, continued or
converted by Bank of America and with a term equivalent to such
Interest
Period would be offered by Bank of America's London Branch to major
banks
in the London interbank Eurodollar market at their request at
approximately
4:00 p.m. (London time) two Business Days prior to the first day of
such
Interest Period.
"EURODOLLAR LOANS": Loans to which the applicable rate of interest
is
based upon the Eurodollar Rate.
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"EURODOLLAR RESERVE PERCENTAGE": for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out
to five
decimal places) in effect on such day, whether or not applicable to
any Lender,
under regulations issued from time to time by the FRB (or any
successor thereto)
for determining the maximum reserve requirement (including any
emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency
funding (currently referred to as "Eurocurrency liabilities"). The
Eurodollar
Rate for each outstanding Eurodollar Loan shall be adjusted
automatically as of
the effective date of any change in the Eurodollar Reserve
Percentage.
"EXCLUDED TAXES": as defined in SECTION 2.14(G).
"EXTRAORDINARY RECEIPT": any cash received by or paid to or for the
account of any Person other than in the ordinary course of business
in respect
of tax refunds, pension plan reversions, proceeds of insurance
(other than
proceeds of Recovery Events, proceeds of business interruption
insurance to the
extent such proceeds constitute compensation for lost earnings and
proceeds from
reinsurance received in the ordinary course of business), indemnity
payments,
purchase price adjustments received in connection with any purchase
agreement
(or other similar agreement) and payments in respect of judgments
or settlements
of claims, litigation or proceedings; provided that Extraordinary
Receipts shall
not include cash receipts received from proceeds of indemnity
payments or
payments in respect of judgments or settlements of claims,
litigation or
proceedings to the extent that such proceeds, awards or payments
are received by
any Person in respect of any third party claim against or loss by
such Person
and promptly applied to pay (or to reimburse such Person for its
prior payment
of) such claim or loss and the costs and expenses of such Person
with respect
thereto so long as such application is commenced prior to or within
90 days
after the receipt of such proceeds, awards, or payments and that
any such
expense being so reimbursed was not charged by a Loan Party or a
Subsidiary or
Affiliate of a Loan Party.
"FEDERAL FUNDS EFFECTIVE RATE": for any day, the rate per annum
equal
to the weighted average of the rates on overnight Federal funds
transactions
with members of the Federal Reserve System arranged by Federal
funds brokers on
such day, as published by the Federal Reserve Bank of New York on
the Business
Day next succeeding such day; provided that (a) if such day is not
a Business
Day, the Federal Funds Rate for such day shall be such rate on such
transactions
on the next preceding Business Day as so published on the next
succeeding
Business Day, and (b) if no such rate is so published on such next
succeeding
Business Day, the Federal Funds Rate for such day shall be the
average rate
(rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to
the Calculation Agent on such day on such transactions as
determined by the
Calculation Agent.
"FEE LETTER": the fee letter by and among the Borrower, BANA and
Morgan Stanley in connection with this Agreement.
"FIRST INTEREST PERIOD": means the date of the draw of funds under
Section 2.2 and ending on the third (3rd) Business Day of July
2005.
"GLOBAL SIGNAL": as defined in the first recital to this Agreement.
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"GSOP": Global Signal Operating Partnership L.P., a Delaware
limited
partnership and its successors and assigns.
"GSOP CREDIT AGREEMENT": the Second Amended and Restated Credit
Agreement, dated as of April 15, 2005 between GSOP, as borrower,
Bank of
America, N.A., as administrative agent and letter of credit issuer
and the
lenders from time to time party thereto.
"GOVERNING DOCUMENTS": (i) with respect to any corporation, the
certificate or articles of incorporation and the bylaws; (ii) with
respect to
any limited liability company, the certificate or articles of
formation or
organization and operating agreement; and (iii) with respect to any
partnership,
joint venture, trust or other form of business entity, the
partnership, joint
venture or other applicable agreement of formation or organization
and any
agreement, instrument, filing or notice with respect thereto filed
in connection
with its formation or organization with the applicable Governmental
Authority in
the jurisdiction of its formation or organization and, if
applicable, any
certificate or articles of formation or organization of such
entity.
"INITIAL LENDERS": BANA and MSAFI, comprising all of the initial
Lenders under this Agreement.
"INSOLVENCY": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"INTEREST PAYMENT DATE": (a) with respect to payments to be made to
the Lenders in any Syndicate, the third (3rd) Business Day of each
calendar
month (commencing on the third (3rd) Business Day of July, 2005)
immediately
following delivery of a written notice by the Administrative Agent
for such
Syndicate to the Borrower setting forth in reasonable detail the
amount of
accrued and unpaid interest thereon at such time or (b) the date of
any
repayment or prepayment of Loans.
"INTEREST PERIOD": as to each Eurodollar Loan, (x) the First
Interest
Period, (y) if and when such Eurodollar Loan is Converted from a
Base Rate Loan,
initially, the date of such Conversion and ending on the date one
month
thereafter, and (z) thereafter, each period commencing on the last
day of the
next preceding Interest Period applicable to such Eurodollar Loan
and ending on
the date one month thereafter. No Interest Period shall extend
beyond the
Maturity Date and if any Interest Period would otherwise end on a
day that is
not a Business Day unless such Business Day is beyond the Maturity
Date, such
Interest Period shall be extended to the next succeeding Business
Day.
"INTEREST RATE AGREEMENT": any interest rate swap agreement,
interest
rate cap agreement, interest rate collar agreement, interest rate
hedging
agreement or other similar agreement or arrangement, each of which
is for the
purpose of hedging the interest rate exposure associated with the
Borrower's and
its Subsidiaries' operations and not for speculative purposes.
"LENDERS": as defined in the preamble to this Agreement.
"LEVEL I": as defined in the definition of "Applicable Margin".
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"LEVEL II": as defined in the definition of "Applicable Margin".
"LIMITED RECOURSE PARENT GUARANTEE": the Parent Guarantee dated as
of
the date hereof made by Global Signal and GSOP in favor of the
Collateral Agent
for the benefit of the Agents and the Lenders, substantially in the
form of
EXHIBIT D, as the same may be amended, supplemented and otherwise
modified from
time to time.
"LOANS": as defined in SECTION 2.1(A).
"LOAN COMMITMENT": with respect to any Lender, the obligation of
such
Lender to make a Loan to the Borrower hereunder on the Closing Date
pursuant to
SECTION 2.1 in a principal amount equal to its percentage interest
in the
Aggregate Loan Commitment set forth opposite such Lender's name on
SCHEDULE 2.1
under the caption "LOAN COMMITMENT PERCENTAGE."
"LOAN DOCUMENTS": this Agreement (including the provisions of the
Securitization Loan Agreement Form incorporated herein), the Notes,
the Deeds of
Trust, the Assignment of Management Agreement, the Subsidiary
Guarantee, the
Limited Recourse Parent Guarantee, the Pledge Agreement, the
Environmental
Indemnity, the Financing Statements, the Cash Management Agreement,
the Fee
Letter and any and all other documents and agreements executed by
any of the
Borrower, Guarantor or Manager in connection with this Agreement.
"LOAN FACILITY": the Loan Commitments and the Loans made
thereunder.
"LOAN PARTIES": the Borrower, GSOP, Global Signal, the Manager and
each Subsidiary of the Borrower which is a party to any Loan
Document.
"LOAN PERCENTAGE": as to any Lender at any time, the fraction
(expressed as a percentage), the numerator of which is the unpaid
principal
amount of the Loans of such Lender at such time and the denominator
of which is
the aggregate unpaid principal amount of the Loans of all Lenders.
"MATURITY DATE": the Original Maturity Date, or such later date to
which such date may be extended pursuant to SECTION 2.5.
"MORGAN STANLEY ADMINISTRATIVE AGENT": MSAFI, as co-administrative
agent hereunder for the Morgan Stanley Syndicate, and any successor
co-administrative agent appointed by the Morgan Stanley Syndicate
pursuant to
SECTION 13A.9.
"MORGAN STANLEY SYNDICATE": MSAFI, as an Initial Lender under this
Agreement, together with any Assignees of its Loan.
"MSAFI": as defined in the preamble to this Agreement.
"MULTIEMPLOYER PLAN": a Plan which is a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA and which is subject to
Title IV of
ERISA.
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"NET CASH PROCEEDS": the gross cash proceeds received by the
Borrower
or any of its Subsidiaries in connection with or as a result of (a)
any sale,
lease or sublease of any assets, (b) the issuance of any
Indebtedness, (c) the
issuance of any equity (other than equity issued to a Loan Party by
another Loan
Party or any net proceeds of an equity offering used to fund the
Aggregate
Acquisition Price on or prior to the Closing Date), and (d) the
receipt of any
capital contributions (other than by a Loan Party with respect to
capital
contributions made by another Loan Party) or Extraordinary
Receipts, minus with
respect to each of the foregoing (so long as each of the following
are estimated
in good faith by the management of the Borrower and certified to
the
Administrative Agents in reasonable detail by an authorized officer
of the
Borrower) (i) actual taxes paid or payable with respect to such
asset sale or
Recovery Event (if any) in an amount equal to the tax liability of
the Borrower
or any of its Subsidiaries in respect of such sale or Recovery
Event (taking
into account all tax benefits of each of the parties), (ii)
reasonable and
customary transaction costs payable by the Borrower or any such
Subsidiary of
the Borrower to any Person that is not an Affiliate or an Equity
Investor or
Affiliate of an Equity Investor related to such transaction, (iii)
Indebtedness
secured by the assets sold or otherwise subject to a Recovery Event
that is
immediately repaid as a consequence of such sale, except
Indebtedness that
constitutes any of the Obligations, (iv) with respect to clause
(a), the portion
of such cash proceeds reserved for post-closing adjustments,
including, without
limitation, indemnification payments and purchase price adjustments
which are
held in a third-party escrow account or in a segregated deposit
account in which
the Collateral Agent has a first priority perfected security
interest; provided
that on the date all such post-closing adjustments have been
determined, the
amount (if any) by which the reserved amount exceeds the actual
post-closing
adjustments payable by the Borrower or any of its Subsidiaries
shall constitute
Net Cash Proceeds on such date, and (v) with respect to clause (a),
an amount,
not in excess of the taxable gain recognized on such asset sale,
necessary to
meet the REIT Distribution Requirement with respect thereto.
"NET TOWER CASH FLOW": at any time, an amount equal to (i) the
aggregate annualized amount of the rent then payable by all lessees
under Leases
with respect to Towers, or, in the case of Towers that are Managed
Properties,
the revenue then due to the Borrower or any of its Subsidiaries
under the Site
Management Agreement for such Towers (net of any payments required
to be
remitted by the Borrower or its Subsidiaries to the owner or lessor
of such
Towers), less (ii) the sum of (a) the aggregate annualized current
insurance
expense, real estate and property taxes, ground lease payments (if
any) and
amounts payable to a third party owner under any Site Management
Agreement (if
applicable) with respect to the Towers; (b) the aggregate trailing
twelve
(12)-month Maintenance Capital Expenditures and other expenses in
respect of the
Towers for direct maintenance expenses, utilities, licensing and
permitting
(provided, that in no event shall any item referred to in clauses
(a) and (b) of
this definition (including Maintenance Capital Expenditures and
utilities paid
by Sprint treated as a reduction in the Purchase Price) be deducted
in respect
of any Tower the maintenance of which is the obligation of a Person
other than
the Borrower or one or more of its Subsidiaries); and (c) a
management fee equal
to the greater of (x) $9,600,000 per annum and (y) 5.00% of the
aggregate
annualized amount of the rent then payable by all lessees under the
Leases. For
purposes of clause (ii)(a) of this definition, the amount of
"current" expenses,
taxes and other payments shall be determined, for the first month
after the
Acquisition of any Tower, with respect to the Towers acquired
pursuant to the
Sprint Acquisition, the amount set forth in Exhibit A of the
Securitization Loan
Agreement Form under the heading "insurance, taxes and ground/lease
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payments" and, at any time thereafter, based on the actual amount
of such
expenses, taxes and other payments. For purposes of clause (b) of
this
definition, the calculation of the aggregate trailing twelve
(12)-month
Maintenance Capital Expenditures and other expenses with respect to
any Tower
(in each case after giving effect to the proviso thereto) shall be
based on (i)
at the time of the Acquisition of such Tower and for one month
thereafter, (A)
with respect to Maintenance Capital Expenditures and direct
maintenance
expenses, the higher of (x) the sum of the actual annual budgeted
Maintenance
Capital Expenditures and the annual budgeted direct maintenance
expenses for
such Tower, and (y) $700, and (B) with respect to all other
expenses, the
information obtained from the seller of such Tower pursuant to the
pre-acquisition due diligence process of the Loan Parties, and (ii)
at any time
after the first month until the first anniversary of the
Acquisition of such
Tower, the actual amount of such Maintenance Capital Expenditures
and other
expenses, annualized based on the number of months that have passed
since the
date of such Acquisition. The calculation of Net Tower Cash Flow
shall be
subject to the last sentence of Section 5.1(d)(v).
"NON-EXCLUDED TAXES": as defined in SECTION 2.14(A).
"NON-EXEMPT LENDER": as defined in SECTION 2.14(F).
"NOTE": as defined in SECTION 2.4(E).
"NOTICE OF BORROWING": as defined in SECTION 2.2(A).
"ORAL LEASES": those Leases which are oral and not subject to any
written agreement.
"ORIGINAL MATURITY DATE": the day that is twelve (12) months after
the
Closing Date, or if such date is not a Business Day, the next
Business Day.
"OTHER TAXES": as defined in SECTION 2.14(B).
"PARTICIPANTS": as defined in SECTION 14.3(B).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant
to Subtitle A of Title IV of ERISA.
"PLAN": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which Global Signal, the
Borrower or a
Commonly Controlled Entity is (or, if such plan were terminated at
such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in
Section 3(5) of ERISA.
"PLEDGE AGREEMENT": the Pledge Agreement dated as of the date
hereof
made by Global Signal, GSOP and any Person that becomes a party
thereto pursuant
to Section 5(e) thereof in favor of the Collateral Agent,
substantially in the
form of EXHIBIT H, as the same may be amended, supplemented or
otherwise
modified from time to time.
"PROGRAM SUPPORT AGREEMENT": with respect to any Conduit Lender,
any
agreement entered into by any Program Support Provider providing
for the
issuance of one or
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more letters of credit for the account of the Conduit Lender (or
any related
commercial paper issuer that finances the Conduit Lender), the
issuance of one
or more surety bonds for which the Conduit Lender (or such related
issuer) is
obligated to reimburse the applicable Program Support Provider for
any drawings
thereunder, the sale by the Conduit Lender (or such related issuer)
to any
Program Support Provider of the Conduit Lender's interest under
this Agreement
and the Loans (or portions thereof or participations therein)
and/or the making
of loans and/or other extensions of credit to the Conduit Lender
(or such
related issuer) in connection with its commercial paper program,
together with
any letter of credit, surety bond or other instrument issued
thereunder.
"PROGRAM SUPPORT PROVIDER": with respect to any Conduit Lender, any
Person now or hereafter extending credit or having a commitment to
extend credit
to or for the account of, or to make purchases from, such Conduit
Lender (or any
related commercial paper issuer that finances such Conduit Lender)
or issuing a
letter of credit, surety bond or other instrument to support any
obligations
arising under or in connection with such Conduit Lender's (or such
related
issuer's) commercial paper program.
"RECOVERY EVENT": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding
relating to
any asset of the Borrower or any of its Subsidiaries.
"REIT DISTRIBUTION REQUIREMENT": distributions in an amount
reasonably
necessary to enable Global Signal to pay the dividends required to
maintain its
REIT Status and not be subject to corporate level tax based on
income or to
excise tax under Section 4981 of the IRC.
"REIT STATUS": with respect to any Person, such Person's status as
a
real estate investment trust, as defined in Section 856(a) of the
IRC, that
satisfies the conditions and limitations set forth in Section
856(b) and 856(c)
of the IRC.
"REGISTER": as defined in SECTION 2.4(C).
"REGULATION D": Regulation D of the Board as in effect from time to
time.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241
of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(c)
of
ERISA, other than those events as to which the thirty day notice
period is
waived under Sections .21, .22, .23, .26, .27 or .28 of PBGC Reg.
Section 4043.
"REQUIRED LENDERS": at any time, Lenders the Loan Percentages of
which
aggregate more than 50%.
"REQUIRED SYNDICATE LENDERS": with respect to either Syndicate,
Lenders the Loan Percentages of which aggregate more than 50% of
the total Loan
Percentages of all the Lenders in such Syndicate.
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"REQUIREMENTS OF LAW": as to any Person, the certificate of
incorporation and by laws or other organizational or Governing
Documents of such
Person, and any law, treaty, rule or regulation or determination of
an
arbitrator or a court or other Governmental Authority, in each case
applicable
to or binding upon such Person or any of its property or to which
such Person or
any of its property is subject.
"SECTION 2.14 CERTIFICATE": as defined in SECTION 2.14(F)(II).
"SECURITIZATION": as defined in the third recital to this
Agreement.
"SECURITIZATION LOAN AGREEMENT": as defined in SECTION 14.9.
"SECURITIZATION LOAN AGREEMENT FORM": as defined in the third
recital
to this Agreement.
"SPRINT": as defined in the first recital to this Agreement.
"SPRINT ACQUISITION": as defined in the first recital to this
Agreement.
"SPRINT ACQUISITION DOCUMENTS": as defined in the first recital to
this Agreement.
"SPRINT SPV": as defined in the first recital to this Agreement.
"S&P": Standard & Poor's Ratings Services, a division of
The
McGraw-Hill Companies, Inc.
"SUBSIDIARY": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having
ordinary
voting power (other than stock or such other ownership interests
having such
power only by reason of the happening of a contingency) to elect a
majority of
the board of directors or other managers of such corporation,
partnership or
other entity are at the time owned, or the management of which is
otherwise
controlled, directly or indirectly through one or more
intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a
"SUBSIDIARY" or
to "SUBSIDIARIES" in this Agreement shall refer to a Subsidiary or
Subsidiaries
of the Borrower.
"SUBSIDIARY GUARANTEE": a Guarantee made by each Subsidiary (if
any)
of the Borrower in favor of the Collateral Agent for the benefit of
the Agents
and the Lenders, substantially in the form of EXHIBIT G as the same
may be
amended, supplemented or otherwise modified from time to time.
"SYNDICATE": either the BANA Syndicate or the Morgan Stanley
Syndicate.
"SYNTHETIC LEASE": any lease entered into in connection with the
lease
or acquisition of fixed assets which is treated under GAAP as an
operating lease
but for tax purposes as a capital lease.
"TAXES": as defined in SECTION 2.14(A).
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"TAKEOUT FINANCING": a Securitization or a bank and/or bond, equity
or
other financing transaction by Global Signal, the Borrower or any
other
Affiliate of Global Signal, the proceeds of which are used to repay
the Loans in
connection with the maturity of the Loans or early termination of
the Loan
Facility.
"TAKEOUT FINANCING NOTICE": as defined in SECTION 14.9.
"THRESHOLD AMOUNT": $1,000,000.
"TRANSFEREE": as defined in SECTION 14.3(E).
"TYPE": as to any Loan, its nature as a Base Rate Loan or a
Eurodollar
Loan.
"ULTIMATE LENDER": as defined in SECTION 14.9.
(b) Certain Replaced Terms. Each occurrence of the following terms
in
the Securitization Loan Agreement Form shall be replaced as
indicated below:
(i) Each reference to "Borrower Parties" shall be deemed to be a
reference to "Loan Parties", mutatis mutandis.
(ii) Each reference to "Lender" listed in Part 1 of SCHEDULE 1.1
shall
be deemed to be a reference to "Administrative Agents", mutatis
mutandis.
(iii) Each reference to "Lender" listed on Part 2 of SCHEDULE 1.1
shall be deemed to be a reference to "Collateral Agent", mutatis
mutandis.
(iv) Each reference to "Lender" listed on Part 3 of SCHEDULE 1.1
shall
be deemed to be a reference to "Agents", mutatis mutandis.
(v) Each reference to "Lender" or "the Lender" listed on Part 4 of
SCHEDULE 1.1 shall be deemed to be a reference to "each Lender" or
"any
Lender" as the context shall require, mutatis mutandis.
(vi) Each reference to "Lender" listed on Part 5 of SCHEDULE 1.1
shall
be deemed to be a reference to "the Required Lenders", mutatis
mutandis.
(vii) Each reference to "Lender" listed on Part 6 of SCHEDULE 1.1
shall be deemed to be a reference to "each of the Lenders and the
Agents",
mutatis mutandis.
ARTICLE II
TERMS OF THE LOANS AND COMMITMENTS
Section 2.1 Loan Commitments.
Subject to the terms and conditions hereof (including, without
limitation, the satisfaction of the conditions precedent set forth
in ARTICLE
III of the Securitization Loan
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Agreement Form and ARTICLE III hereof), each Lender agrees to make
a Loan
("LOANS") to the Borrower on the Closing Date up to an aggregate
principal
amount not to exceed its respective Loan Commitment. Amounts
prepaid or repaid
on the Loans may not be reborrowed.
Section 2.2 Procedure for Borrowing.
(a) The Borrower shall deliver to each Administrative Agent a fully
executed notice of borrowing substantially in the form of ANNEX I
(the "NOTICE
OF BORROWING") no later than 11:00 a.m., New York City time, two
Business Days
prior to the Closing Date. The Notice of Borrowing shall provide:
(i) the amount to be borrowed;
(ii) a calculation of the Aggregate Loan Commitment in reasonable
detail;
(iii) the amount of the borrowing to be paid to Sprint and its
Subsidiaries; and
(iv) wire instructions for Sprint and its Subsidiaries and the
other
parties to be paid in connection with the closing of the Sprint
Acquisition.
(b) Upon receipt of the Notice of Borrowing, each Administrative
Agent
shall promptly notify each Lender in its respective Syndicate
thereof. Not later
than 11:00 a.m., New York City time, on the Closing Date, each
Lender shall make
available to its Administrative Agent at the office specified in
SECTION 14.2
for such Administrative Agent the amount of such Lender's pro rata
share of such
borrowing in immediately available funds. Subject to the
satisfaction of the
conditions precedent set forth in ARTICLE III of the Securitization
Loan
Agreement Form and ARTICLE III hereof and each Administrative Agent
shall on
such date make the amounts it received from the Lenders in its
Syndicate
available to the Borrower by wiring the specified funds to the
accounts
specified in the Notice of Borrowing no later than 1:00 p.m., New
York City
time, provided, that the Administrative Agents shall have received
the funds
from each Lender by 11:00 a.m., New York City time, on such day.
Section 2.3 Interest Rates and Payment Dates.
(a) The Loans shall be Eurodollar Loans until the Loans are
converted
to Base Rate Loans pursuant to SECTION 2.3(E), SECTION 2.10 or
SECTION 2.12.
(b) Each Eurodollar Loan shall bear interest at a rate per annum
equal
to the Eurodollar Rate determined for such day plus the Applicable
Margin.
(c) Each Base Rate Loan shall bear interest at a rate per annum
equal
to the Base Rate plus the Applicable Margin.
(d) If the Applicable Margin is to be determined under Level II
after
October 15, 2005, the Borrower shall on the first Business Day
following such
date make a retroactive payment of interest to each applicable
Administrative
Agent for the benefit of the Lenders in its Syndicate for the
period of the
Closing Date to such date equal to the difference between the
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interest on the Loans calculated based on Level II of the
Applicable Margin for
such period and the interest actually paid by the Borrower on the
Loans for such
period.
(e) If all or a portion of (i) any principal of any Loan, (ii) any
interest payable thereon or (iii) any other amount payable
hereunder shall not
be paid when due (whether at the stated maturity, by acceleration
or otherwise),
(x) at the option of any Administrative Agent or the Required
Lenders and upon
notice to the Borrower, each Eurodollar Loan shall convert to a
Base Rate Loan,
and (y) the principal of all overdue Loans and any such overdue
interest or
other amount shall bear interest at a rate per annum which is the
rate that
would otherwise be applicable to the Loans pursuant to the
foregoing provisions
of this Section plus 4%, in each case from the date of such
non-payment until
such overdue principal, interest or other amount is paid in full
(as well after
as before judgment).
(f) Interest shall be payable in arrears on each Interest Payment
Date; provided that interest accruing pursuant to paragraph (e) of
this Section
shall be payable from time to time on demand.
Section 2.4 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to each
Administrative Agent for the account of the Lenders in its
Syndicate, the
principal amount of the Loans held by such Lenders on the Maturity
Date;
provided, that if the Maturity Date is extended pursuant to SECTION
2.5, the
Borrower shall make a principal repayment to such Administrative
Agent on each
Interest Payment Date following the Original Maturity Date in an
amount equal to
a monthly percentage share of the aggregate outstanding principal
amount of the
Loans held by such Lenders based on a 20-year straight-line
amortization
schedule commencing on the Original Maturity Date, as calculated by
the
Administrative Agents. Each Administrative Agent shall distribute
to the Lenders
in its respective Syndicate payments it receives from the Borrower
for the
account of such Lenders promptly upon receipt in like funds as
received.
(b) Each Lender shall maintain in accordance with its usual
practice
an account or accounts evidencing Indebtedness of the Borrower to
such Lender
resulting from the Loan of such Lender, including the amounts of
principal and
interest payable and paid to such Lender from time to time under
this Agreement.
(c) Each Administrative Agent shall maintain a register (the
"REGISTER"), solely for such purpose as agent for the Borrower, in
which shall
be recorded (i) the name and address of each Lender in its
Syndicate (including
any Assignee, successor and participants), (ii) the amount of each
Loan made
hereunder by the Lenders in its Syndicate and any Note evidencing
such Loan,
(iii) the amount of any principal or interest due and payable or to
become due
and payable from the Borrower to each such Lender hereunder, (iv)
the amount of
any sum received by such Administrative Agent hereunder from the
Borrower, and
(v) each assignment and participation of such Loan pursuant to
SECTION 14.3.
(d) The entries made in each Register and the accounts of each
Lender
maintained pursuant to SECTION 2.4(C) shall, to the extent
permitted by
applicable law, be prima facie evidence of the existence and
amounts of the
obligations of the Borrower therein recorded
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(absent manifest error); provided, however, that the failure of any
Administrative Agent to maintain the Register or any Lender to
maintain such
account, or any error therein, shall not in any manner affect the
obligation of
the Borrower to repay (with applicable interest) the Loans made to
the Borrower
by such Lender in accordance with the terms of this Agreement. Any
assignment or
transfer by any Lender of its rights and obligations under this
Agreement
pursuant to and in accordance with SECTION 14.3 that is not
recorded in
accordance with this SECTION 2.4 shall be treated for purposes of
this Agreement
as a sale by such Lender of a participation in such rights and
obligations in
accordance with SECTION 14.3.
(e) The Borrower agrees that, upon the request of any Lender to its
Administrative Agent, the Borrower will execute and deliver to such
Lender a
promissory note of the Borrower evidencing the Loans of such
Lender,
substantially in the form of EXHIBIT B, with appropriate insertions
as to date
and principal amount (a "NOTE").
Section 2.5 Extension of Maturity Date.
(a) Extension Option. (i) The Borrower may on two occasions extend
the
Maturity Date for a period of six months upon written notice to the
Administrative Agents no later than 30 days prior to the then
existing Maturity
Date; provided that if upon any such extension the Maturity Date
would not be on
a Business Day, the Maturity Date shall be the next Business Day.
Upon receipt
of any such notice, each Administrative Agent shall promptly notify
each Lender
in its Syndicate thereof.
(ii) The effectiveness of any such extension is subject to the
satisfaction of the following conditions: (A) any fees and other
amounts
(including, without limitation, any fees payable by the Borrower in
connection with such extension) shall have been paid; (B) any other
amounts
then due hereunder shall have been paid, (C) no Event of Default
shall have
occurred and be continuing on the date of such extension, and (D)
delivery
of a certificate of a Responsible Officer of the Borrower as to the
matters
set forth in SECTIONS 3.1(D) AND (H) and SECTIONS 4.2(B)(4) of the
Securitization Loan Agreement Form.
Section 2.6 [Reserved]
Section 2.7 Optional Prepayment. The Borrower may at any time and
from
time to time prepay the Loans, in whole or in part, without premium
or penalty,
upon irrevocable notice to the Administrative Agents (in the form
of ANNEX II)
prior to 12:00 noon, New York City time, at least three Business
Days prior
thereto, specifying the date and amount of prepayment. Upon receipt
of any such
notice, each Administrative Agent shall promptly notify each Lender
in its
Syndicate thereof. If any such notice is given, the amount
specified in such
notice shall be due and payable to the Administrative Agents on a
pro rata basis
on the date specified therein, together with any accrued interest
to such date
on the amount prepaid. Partial prepayments pursuant to this Section
shall be in
an aggregate principal amount of $500,000 or a whole multiple
thereof. Amounts
prepaid pursuant to this SECTION 2.7 may not be reborrowed. For the
avoidance of
doubt, any assignment of this Agreement by the Lenders to an
Ultimate Lender
pursuant to a Takeout Financing shall not be considered an optional
prepayment.
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Section 2.8 Mandatory Prepayments.
(a) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from (i) any incurrence of Indebtedness
by the
Borrower or any of its Subsidiaries, other than Indebtedness
permitted pursuant
to SECTION 5.15 of the Securitization Loan Agreement Form, (ii) any
sale or
issuance of Capital Stock by or receipt of any capital contribution
to the
Borrower or any of its Subsidiaries (other than the Equity
Contribution or
Capital Stock issued by a Loan Party to another Loan Party or GSOP
or capital
contributions received by a Loan Party from another Loan Party or
GSOP), (iii)
any Asset Sale or (iv) any Extraordinary Receipts, then 100% of
such Net Cash
Proceeds shall be applied on the third Business Day following
receipt of such
Net Cash Proceeds (or in the case of clauses (iii) and (iv),
following receipt
of Net Cash Proceeds from any individual event or series of events
in an
aggregate amount of $5,000,000) toward the prepayment of the Loans
and interest
thereon.
(b) If on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Recovery Event, 100% of such Net
Cash
Proceeds shall be applied on the third Business Day following
receipt of such
Net Cash Proceeds toward the prepayment of the Loans; provided that
such
prepayment shall not be required if all of the following
requirements are
satisfied: (i) the aggregate amount of all such Net Cash Proceeds
is not greater
than $5,000,000, (ii) such Net Cash Proceeds are (A) reinvested in
other like
assets within 270 days of the Recovery Event that gave rise to such
Net Cash
Proceeds or (B) committed to be reinvested in other like assets
within 270 days
of such Recovery Event and reinvested in such assets within 365
days of such
Recovery Event, and (iii) such Net Cash Proceeds are held in a
segregated
deposit account that is subject to a perfected first priority
security interest
in favor of Collateral Agent for the benefit of the Agents and the
Lenders,
provided that the reinvestment or commitment to reinvest any such
Net Cash
Proceeds of an amount in excess of $5,000,000 pursuant to clause
(ii) above is
pre-approved in writing by the Required Lenders in their reasonable
discretion.
(c) If on any day a Takeout Financing shall occur which does not
result in this Agreement being replaced with a Securitization Loan
Agreement
pursuant to SECTION 14.9, then the Borrower shall prepay, in full
and in cash,
the Loans, any unpaid interest thereon and all other Obligations
then
outstanding.
(d) Any prepayment of Loans pursuant to this Section, and the
rights
of the Lenders in respect thereof, are subject to the provisions of
SECTION
2.11.
Section 2.9 Computation of Interest and Fees.
(a) Interest and fees shall be calculated in all other cases, on
the
basis of a 360-day year, in each case for the actual days elapsed.
The
Calculation Agent shall as soon as practicable notify the Borrower
and each
Administrative Agent of each determination of a Eurodollar Rate.
Any change in
the interest rate on a Loan resulting from a change in the Base
Rate or the
Eurocurrency Reserve Requirements shall become effective as of the
opening of
business on the day on which such change becomes effective. The
Calculation
Agent shall as soon as practicable notify the Borrower and each
Administrative
Agent of the effective date and the amount of each such change in
interest rate.
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(b) Each determination of an interest rate by the Calculation Agent
pursuant to any provision of this Agreement shall be conclusive and
binding on
the Borrower in the absence of manifest error.
Section 2.10 Inability to Determine Interest Rate. If on any day:
(a) the Calculation Agent shall have determined (which
determination
shall be conclusive and binding upon the Borrower) that, by reason
of
circumstances affecting the relevant market, adequate and
reasonable means do
not exist for ascertaining the Eurodollar Rate; or
(b) the Calculation Agent shall have received notice from the
Required
Lenders that the Eurodollar Rate determined or to be determined on
such day will
not adequately and fairly reflect the cost to such Lenders (as
conclusively
certified by such Lenders) of making or maintaining their
Eurodollar Loans,
then the Calculation Agent shall give telecopy or telephonic notice
thereof to
the Borrower and the Administrative Agents as soon as practicable
thereafter. If
such notice is given any outstanding Eurodollar Loans shall be
Converted on such
day to Base Rate Loans, and until such notice has been withdrawn by
the
Calculation Agent, no Loans under the Loan Facility shall be
Converted to
Eurodollar Loans or Continued as such. The Calculation Agent shall
withdraw any
such notice pursuant to clause (a) above if the Calculation Agent
determines
that the relevant circumstances have ceased to exist.
Section 2.11 Pro Rata Treatment and Payments.
(a) The borrowing by the Borrower from the Lenders hereunder and
any
reduction of the Loans of the Lenders shall be made pro rata
according to the
respective Loan Percentages of the Lenders. Each payment (including
each
prepayment) by the Borrower on account of principal of and interest
on the Loans
shall be made pro rata according to the respective outstanding
principal amounts
of the Loans then held by the Lenders.
(b) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or
otherwise, shall
be made without set off or counterclaim and shall be made prior to
12:00 noon,
New York City time, on the due date thereof to the relevant
Administrative Agent
at such Administrative Agent's office specified in SECTION 14.2, in
Dollars and
in immediately available funds. If any payment hereunder (other
than payments on
Eurodollar Loans) becomes due and payable on a day other than a
Business Day,
such payment shall be extended to the next succeeding Business Day,
and, with
respect to payments of principal, interest thereon shall be payable
at the then
applicable rate during such extension. If any payment on a
Eurodollar Loan
becomes due and payable on a day other than a Business Day, the
maturity thereof
shall be extended to the next succeeding Business Day unless the
result of such
extension would be to extend such payment into another calendar
month in which
event such payment shall be made on the immediately preceding
Business Day. In
the case of any extension of any payment of principal pursuant to
the preceding
two sentences, interest thereon shall be payable at the then
applicable rate
during such extension.
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(c) Unless the Administrative Agent for a Lender shall have been
notified in writing by such Lender prior to a borrowing that such
Lender will
not make the amount that would constitute its pro rata share of
such borrowing
available to its Administrative Agent in accordance with SECTION
2.2(B), such
Administrative Agent may assume that such Lender is making such
amount available
to it, and such Administrative Agent may, in reliance upon such
assumption, make
available to the Borrower a corresponding amount. If such amount is
not made
available to such Administrative Agent by the required time on the
Closing Date,
such Lender shall pay to such Administrative Agent, on demand, such
amount with
interest thereon at a rate equal to the daily average Federal Funds
Effective
Rate for the period until such Lender makes such amount immediately
available to
such Administrative Agent. A certificate of an Administrative Agent
submitted to
any Lender in its Syndicate with respect to any amounts owing under
this Section
shall be conclusive in the absence of manifest error. If such
Lender's pro rata
share of such borrowing is not made available to its Administrative
Agent by
such Lender within three Business Days of the Closing Date, such
Administrative
Agent shall also be entitled to recover such amount with interest
thereon at the
rate per annum applicable to Base Rate Loans hereunder, on demand,
from the
Borrower.
