SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 2, 1999
SpectraSite Holdings, Inc.
------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware
--------------------
(State or other jurisdiction of incorporation or organization)
0-27217 56-2027322
------------- -------------------
(Commission File Number) (I.R.S. Employer Identification Number)
8000 Regency Parkway
Cary, North Carolina 27511
------------------------------------ ------------
(Address of principal executive offices) (Zip Code)
(919) 468-0112
-----------------------
(Registrant's telephone number, including area code)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On September 2, 1999, SpectraSite Holdings, Inc. completed the acquisition
of Westower Corporation. A copy of SpectraSite's press release announcing the
consummation of the Westower transaction is being filed as Exhibit 99.1 with
this report.
The Westower acquisition was structured as a merger of Westower with W
Acquisition Corp., a wholly owned subsidiary of SpectraSite Holdings, with
Westower as the surviving corporation. Westower stockholders, which consisted of
various individual and institutional investors, received 1.81 shares of
SpectraSite common stock for each share of Westower common stock. In connection
with the merger, SpectraSite repaid approximately $70 million of outstanding
Westower indebtedness with cash-on-hand.
As part of the merger, SpectraSite appointed Calvin J. Payne as Executive
Vice President-Design and Construction and a director of SpectraSite Holdings.
Mr. Payne was the founder and had been Chief Executive Officer of Westower.
In addition prior to the Westower merger, the stockholders of SpectraSite
approved an increase in the authorized shares of common stock to 300,000,000.
SpectraSite also increased the aggregate number of shares of common stock
available for grant under its stock incentive plan to 10,000,000.
Item 5. Other Events
SpectraSite's exchange offers for its outstanding 12% senior discount notes
due 2008 and its 11 1/4% senior discount notes due 2009 expired at 5:00 p.m. on
September 15, 1999. All of the outstanding 2008 notes and all of the outstanding
2009 notes were tendered in the exchange offers. A copy of SpectraSite's press
release announcing the consummation of the exchange offers is being filed as
Exhibit 99.2 with this report.
Item 7. Financial Statements and Exhibits.
(a) Financial statements of business acquired.
Unaudited financial statements for the period ended June 30, 1999
and 1998 were previously filed by Westower on Form 10-Q (File No.
1-13491). Westower's audited financial statements as of September
30, 1998 and for the seven months then ended and as of February
28, 1998 and February 28, 1997 and for the three years ended
February 28, 1998 were previously filed with SpectraSite's
registration statement on Form S-4 (File No. 333-84857)
(b) Pro forma financial information.
Pro forma financial statements reflecting the acquisition of
Westower as of and for the six months ended June 30, 1999 and for
the year ended December 31, 1998 are being filed with this report
beginning on page P-1.
(c) Exhibits.
<PAGE>
2.1 Agreement and Plan of Merger, dated as of May 15, 1999,
among Westower Corporation, SpectraSite Holdings, Inc.
and W Acquisition Corp. (incorporated by reference to
Exhibit 2.3 of SpectraSite's registration statement on
Form S-4 (File No. 333-84857).
3.1 Amendment No. 1 to the Amended and Restated Certificate
of Incorporation of SpectraSite Holdings, Inc.
10.1 Employment Agreement, dated as of September 2, 1999, with
Calvin J. Payne.
10.2 First Amendment to Credit Agreement, dated as of August
23, 1999, by and among SpectraSite Communications, Inc.,
SpectraSite Holdings, Inc., CIBC World Markets Corp.,
Credit Suisse First Boston and the other parties thereto.
99.1 Press Release dated September 2, 1999
99.2 Press Release dated September 15, 1999
<PAGE>
UNAUDITED PRO FORMA FINANCIAL DATA
General
The unaudited pro forma financial data are based on the historical
financial statements of SpectraSite Holdings, Inc. and Westower Corporation and
the adjustments described in the accompanying notes. The unaudited pro forma
financial data do not purport to represent what SpectraSite's, Westower's or the
combined entity's financial position or results of operations would actually
have been if the transactions had in fact occurred on the dates indicated and
are not necessarily representative of SpectraSite's financial position or
results of operations at any future date or for any future period.
SpectraSite
The following unaudited pro forma consolidated financial data present the
post-merger unaudited pro forma consolidated balance sheet of SpectraSite as of
June 30, 1999 and both the pre-merger and post-merger unaudited pro forma
consolidated statements of operations of SpectraSite for the year ended December
31, 1998 and for the six months ended June 30, 1999. The SpectraSite pro forma
column and the Westower pro forma column presented in the post-merger
SpectraSite unaudited pro forma consolidated statements of operations for the
six months ended June 30, 1999 and for the twelve months ended December 31, 1998
are derived from the pre-merger SpectraSite and Westower pro forma consolidated
statements of operations for the corresponding periods. The post-merger
unaudited pro forma consolidated balance sheet data reflects the Westower merger
as if it had occurred on June 30, 1999. The unaudited pro forma consolidated
statement of operations data give effect to the following transactions as if
they had occurred on January 1, 1998:
o the issuance and sale of SpectraSite's 12% senior discount notes due 2008;
o the acquisition of 2,000 communications towers from Nextel, the leaseback
of antenna space by Nextel and SpectraSite's exclusive agreement to acquire
or construct 1,700 additional sites for Nextel;
o the issuance and sale of SpectraSite's 11 1/4% senior discount notes due
2009;
o the issuance and sale of SpectraSite's Series C preferred stock;
o initial borrowings under SpectraSite's credit facility;
o the acquisition of 45 towers from Airadigm and the release of escrowed
funds to SpectraSite; and
o the consummation of the merger with Westower.
Certain of the data presented in the "Nextel" columns to the unaudited pro
forma statements of operations of SpectraSite are estimates provided by Nextel.
Neither SpectraSite's independent accountants, Nextel's independent accountants
nor Westower's independent accountants have audited or otherwise tested this
data.
The acquisition of tower assets from Nextel and the leaseback of antenna
space by Nextel are presented as if the purchase of assets had occurred on
January 1, 1998. Adjustments for revenue are based on the terms of the master
site lease agreement and on historical co-location revenues. Adjustments to
costs of operations consist of direct operating expenses, which include ground
lease payments, historical routine maintenance costs and property taxes
associated with the towers. Depreciation expense is straight-line depreciation
of the aggregate cost of the towers. Ground leases are non-cancelable operating
leases, generally for terms of five years and include options for renewal, and
pro forma ground lease expense is based on executed ground leases. Nextel has
leased space on each of the 2,000 towers we acquired, primarily for five-year
terms with options for renewal. The pro forma minimum ground lease expenses and
minimum rental income for these leases assuming the transaction occurred and the
related leases commenced January 1, 1998 are as follows:
Ground Lease Expense Rental Income
-------------------------------------
(dollars in thousands)
1998......... $ 17,648 $ 40,766
1999......... 17,648 40,766
2000......... 17,648 40,766
2001......... 17,648 40,766
2002......... 17,648 40,766
-------- --------
Total $ 88,240 $203,830
======== ========
P-1
<PAGE>
The acquisition of tower assets from Airadigm and the leaseback of antenna
space by Airadigm are presented as if the purchase of assets had occurred on
January 1, 1998. Adjustments for revenue are based on the executed tenant lease
terms for the Airadigm towers. Cost of revenues represents the cost of the
executed ground leases, historical routine maintenance costs and property taxes
associated with the towers. Depreciation expense is straight-line depreciation
of the aggregate cost of $11.25 million of the 45 towers. The Airadigm ground
leases are non-cancelable operating leases, generally for terms of five years
and include options for renewal, and pro forma ground lease expense is based on
executed ground leases. Airadigm has leased space on these towers for a
five-year term with options for renewal. Airadigm has recently filed for
protection under Chapter 11 of the U.S. Bankruptcy Code. We cannot predict the
impact of this proceeding on our future results of operations or financial
condition. The pro forma minimum ground lease expenses and minimum rental income
for these leases assuming the transaction occurred and the related leases
commenced January 1, 1998 are as follows:
Ground Lease Expense Rental Income
-------------------------------------
(dollars in thousands)
1998......... $ 260 $1,007
1999......... 260 1,007
2000......... 260 1,007
2001......... 260 1,007
2002......... 260 1,007
------- ------
Total $ 1,300 $5,035
======= ======
Westower
The following unaudited pro forma consolidated financial data of Westower
present the unaudited pro forma consolidated statements of operations of
Westower for the twelve months ended December 31, 1998 and the six months ended
June 30, 1999. The unaudited consolidated statement of operations data give
effect to the following transactions as if they had occurred on January 1, 1998:
o the acquisition of Cord Communications, Inc.;
o the acquisition of Summit Communications, LLC; and
o the acquisition of communications towers from Koch Industries, Inc. and its
affiliates.
These statements include pro forma adjustments to reflect the results of
operations of Cord and Summit for the period from January 1, 1998 through the
dates of acquisition, August 31, 1998 and November 11, 1998, respectively, and
give effect to the Koch tower acquisition, which occurred in February 1999, as
if this acquisition occurred on January 1, 1998. In addition to the above
acquisitions, from March 1, 1998 through June 30, 1999, Westower acquired Jovin
Communications, Inc., Acier Filteau, Inc., CNG Communications, Inc., Teletronics
Management Services, Inc., Cypress Real Estate Services, Inc. and
Telecommunications R. David. These acquisitions, which are included in the
historical financial statements of Westower, were not considered significant
transactions, individually or in the aggregate, and therefore, were not included
in the unaudited pro forma consolidated statement of operations of Westower.
The acquisition of tower assets from Koch and the leaseback of antenna
space by Koch are presented as if the purchase of assets had occurred on January
1, 1998. Adjustments for revenue are based on the executed tenant lease terms
for the Koch towers. Adjustments to costs of operations consist of direct
operating expenses, which include ground lease payments, estimated routine
maintenance costs, property taxes and insurance associated with the towers.
Depreciation expense is straight-line depreciation of the aggregate cost of
$17.0 million. The Koch ground leases are non-cancelable operating leases for a
term of 49 years, and pro forma ground lease expense is based on executed ground
leases. Koch has leased space on these towers for a ten-year term with options
for renewal. The pro forma minimum ground lease expenses and minimum rental
income for these leases assuming the transaction occurred and the related leases
commenced January 1, 1998 are as follows:
Ground Lease Expense Rental Income
-------------------------------------
(dollars in thousands)
1998......... $ 439 $ 1,364
1999......... 439 1,364
2000......... 439 1,364
2001......... 439 1,364
2002......... 439 1,364
Thereafter... 19,322 6,824
-------- --------
Total $ 21,517 $ 13,644
======== ========
P-2
<PAGE>
POST-MERGER SPECTRASITE HOLDINGS, INC.
Unaudited Pro Forma Consolidated Balance Sheet
As of June 30, 1999
(in thousands)
<TABLE>
<CAPTION>
SpectraSite Westower Merger SpectraSite
Historical Historical Adjustments Pro Forma
----------- ---------- ----------- ------------
Assets
Current assets:
<S> <C> <C> <C> <C>
Cash and cash equivalents............ $ 237,393 $ 4,204 $ (61,033)(a) $ 171,064
(5,000)(b)
(4,500)(c)
Accounts receivable.................. 4,037 20,506 - 24,543
Earnings in excess of billings....... - 6,758 - 6,758
Inventory............................ - 3,133 - 3,133
Related party advances and receivables - 419 - 419
Other current assets................. 2,926 1,964 - 4,890
------ ----- -------- -------
Total current assets.......... 244,356 36,984 (70,533) 210,807
Property and equipment, net.......... 619,544 50,217 669,761
Intangible assets.................... 7,867 26,992 5,048(a) 212,216
169,845(b)
2,464(c)
Deposits............................... 46,460 1,176 - 47,636
Deferred debt issue costs.............. 32,191 2,464 (2,464)(c) 32,191
Other.................................. 825 2,499 - 3,324
-------- ------- ------- ---------
Total assets.................. $ 951,243 $ 120,332 $ 104,360 $1,175,935
======== ======= ======= =========
Liabilities and shareholder's equity...
Current liabilities:
Accounts payable..................... $ 4,653 $ 8,374 $ (1,519)(b) $ 11,508
Accrued and other current liabilities 4,769 1,909 - 6,678
Billings in excess of costs and
estimated earnings............... - 1,586 - 1,586
Deferred revenue..................... 3,763 - - 3,763
Income taxes payable................. - 2,450 - 2,450
Deferred income taxes................ - 395 - 395
Stockholder advances and notes payable
to related parties.................... - 154 - 154
Note payable......................... - 68 - 68
Current portion of long-term debt and
capital lease obligations.......... - 1,576 - 1,576
------ ------ ------- ------
Total current liabilities..... 13,185 16,512 (1,519) 28,178
Revolving credit facility and capital
lease obligations........................ 150,000 57,059 (55,985)(a) 151,074
Deferred income taxes.................. - 2,977 - 2,977
2008 notes............................. 140,651 - - 140,651
2009 notes............................. 347,546 - - 347,546
------- ------ ------- -------
Total liabilities............. 651,382 76,548 (57,504) 670,426
Shareholders' equity:
Common stock......................... 3 85 (69)(b) 19
Preferred stock (Series A, B and C).. 339,494 - - 339,494
Additional paid-in-capital........... 3,792 39,818 165,814 (b) 209,424
Accumulated other comprehensive income - (237) 237 (b) -
Retained earnings (accumulated deficit) (43,428) 4,118 (4,118)(b) (43,428)
------- ------ ------- -------
Total shareholders' equity.... 299,861 43,784 161,864 505,509
------- ------ ------- --------
Total liabilities
and shareholders' equity.... $ 951,243 $ 120,332 $ 104,360 $1,175,935
======== ======= ======= =========
</TABLE>
See accompanying notes to unaudited pro forma consolidated balance sheet.
P-3
<PAGE>.
POST-MERGER SPECTRASITE HOLDINGS, INC.
Notes to Unaudited Pro Forma Consolidated Balance Sheet
As of June 30, 1999
(in thousands, except per share amounts)
(a) Reflects the repayment of Westower's credit facility in the amount of
$41,600 and the $19,433 repayment of its $15,000 convertible note,
consisting of a carrying value of $14,385 and a premium of $5,048. The
premium payment results in an increase in goodwill. Subsequent to June 30,
1999, Westower drew an additional $8,000 on its credit facility.
(b) Reflects the allocation of the $210,648 purchase price, Westower's payment
of $4,500 for transaction costs, of which $1,519 was accrued at June 30,
1999, and the elimination of stockholders' equity in the Westower merger.
The purchase price consists of the issuance of 15,497,220 shares of
SpectraSite common stock valued at $205,648 in the aggregate, or $13.27 per
share, and cash paid of $5,000 for transaction costs. The fair value of
SpectraSite's common stock is based on the average price of Westower common
stock for the three days before closing. The Westower merger closed on
September 2, 1999.
(c) Reflects the write-off of $2,464 of unamortized deferred financing costs
associated with Westower's credit facility and its $15,000 convertible
note. The final effect of this adjustment is an increase in goodwill of
SpectraSite.
P-4
<PAGE>
PRE-MERGER SPECTRASITE HOLDINGS, INC.
Unaudited Pro Forma Consolidated Statement of Operations
For the Six Months Ended June 30, 1999
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Pre-Merger
SpectraSite
Historical Nextel Airadigm Pro Forma
---------- ------ -------- -----------
Revenues:
<S> <C> <C> <C> <C>
Site leasing.......................... $13,014 $ 14,954 (a) $ 17(g) $ 27,985
Site acquisition...................... 4,323 - - 4,323
------ ------ --- ------
Total revenues........................ 17,337 14,954 17 32,308
Cost of operations:
Site leasing.......................... 5,027 6,913 (b) 6(g) 11,946
Site acquisition...................... 893 - - 893
----- ----- --- ------
Total cost of operations.............. 5,920 6,913 6 12,839
Selling, general and administrative
expenses.............................. 9,660 - (c) - 9,660
Depreciation and amortization.......... 9,074 11,808 (d) 14 20,896
Restructuring and other non-recurring
charges............................... 600 - - 600
------ ------ --- ------
Operating income (loss)................ (7,917) (3,767) (3) (11,687)
Other income (expense):
Interest income....................... 4,727 - - 4,727
Interest expense...................... (28,826) (20,554) (e) - (40,380)
9,000 (f)
------ ------ --- ------
Total other income (expense).......... (24,099) (11,554) - (35,653)
------ ------ --- ------
Net loss............................... $(32,016) $ (15,321) $ (3) $ (47,340)
====== ====== === ======
Net loss................................ ($32,016)
Accretion of redemption value of
preferred stock........................ (760)
-------
Net loss applicable to common
shareholders........................... ($32,776)
========
Net loss per share:
Basic and diluted .................... $ (17.30)
=======
Weighted average number of shares
of common stock outstanding:
Basic and diluted .................. 1,895
=====
</TABLE>
See accompanying notes to unaudited pro forma
consolidated statement of operations.
P-5
<PAGE>
PRE-MERGER SPECTRASITE HOLDINGS, INC.
Notes To Unaudited Pro Forma Consolidated Statement of Operations
For the Six Months Ended June 30, 1999
(dollars in thousands)
(a) Consists of $2,610 of historical co-location revenues received by Nextel
prior to the acquisition, which are based on fixed payment lease terms.
This information was provided to us by Nextel. Also consists of $12,344 of
additional revenues to be recognized by SpectraSite under the terms of the
Nextel master site lease agreement.
(b) Reflects certain direct operating expenses, primarily the cost of executed
ground leases, historical routine maintenance and property taxes associated
with the towers, paid by Nextel prior to the acquisition.
(c) SpectraSite expects that it will incur incremental operating expenses as a
result of the Nextel tower acquisition. Such incremental expenses are
currently estimated to amount to approximately $875 per quarter. These
incremental operating expenses are based upon management's estimates rather
than on any contractual obligation; as such, these amounts have not been
presented as adjustments in the accompanying pro forma financial
statements.
(d) Reflects the depreciation of the acquired towers calculated on a
straight-line basis over 15 years.
(e) Reflects adjustment to interest expense as if SpectraSite had issued its 11
1/4% senior discount notes due 2009 and had entered into the credit
facility on January 1, 1998 as follows:
Pro forma interest expense:
Interest on 2009 notes at 12.00%........... $ 13,794
Interest on $150,000 term loan............. 3,964
Amortization of debt issuance costs........ 1,626
Commitment fees on unused portion of credit
facility........................................ 1,170
------
Total adjustment........................... $ 20,554
======
(f) Reflects elimination of a one-time expense related to the issuance of 2.0
million shares of common stock to various parties as consideration for
providing a financing commitment related to the Nextel tower acquisition
that was not utilized. These shares were valued at $9.0 million.
(g) Reflects the acquisition of one tower from Airadigm, which tower was placed
into service on June 30, 1999, and one month of revenue and related
expenses for each of the four Airadigm towers placed into service on
January 31, 1999.
P-6
<PAGE>
WESTOWER CORPORATION AND SUBSIDIARIES
Unaudited Pro Forma Consolidated Statement of Operations
For the Six Months Ended June 30, 1999
(in thousands, except per share amounts)
Historical Koch Westower
Westower Adjustments Pro Forma
--------- ----------- ---------
Revenues:
Site leasing.......................... $ 700 $ 227(a) $ 927
Site construction..................... 42,767 - 42,767
------ --- ------
Total revenues........................ 43,467 227 43,694
Cost of operations:
Site leasing.......................... 232 123(b) 355
Site construction..................... 30,042 - 30,042
------ --- ------
Total cost of operations.............. 30,274 123 30,397
Selling, general and administrative 9,127 - 9,127
expenses..............................
Depreciation and amortization.......... 1,948 142(c) 2,090
Restructuring and other non-recurring
charges............................... 1,519 - 1,519
----- --- -----
Operating income (loss)................ 599 (38) 561
Other income (expense):
Interest income....................... 99 - 99
Interest expense...................... (1,479) (213)(d) (1,692)
Other expense......................... 220 - 220
----- --- -----
Total other income (expense).......... (1,160) (213) (1,373)
----- --- -----
Income before income taxes............. (561) (251) (812)
Provision (benefit) for income taxes... 776 (100)(e) 676
--- --- -----
Net loss............................... $ (1,337) $(151) $(1,488)
===== === =====
Net loss per share:
Basic and diluted..................... $ (0.16)
=====
Weighted average number of shares of
common stock outstanding:
Basic and diluted..................... 8,434
=====
See accompanying notes to unaudited pro forma
consolidated statement of operations.
P-7
<PAGE>
WESTOWER CORPORATION AND SUBSIDIARIES
Notes To Unaudited Pro Forma Consolidated Statement of Operations
For the Six Months Ended June 30, 1999
(a) Consists of additional revenues to be recognized by Westower in connection
with site lease agreements with Koch.
(b) Reflects certain direct operating expenses, primarily the cost of executed
ground leases, estimated routine maintenance, property taxes and insurance
associated with the towers.
(c) Reflects the depreciation of the acquired towers from Koch calculated on a
straight-line basis over 20 years.
(d) Reflects adjustment to interest expense related to additional borrowings
under Westower's credit facility to acquire the Koch towers, based on the
credit facility's approximate interest rate of 7.5%.
(e) Reflects income tax benefit for the Koch tower operating results at
Westower's estimated tax rate of 40%.
P-8
<PAGE>
POST-MERGER SPECTRASITE HOLDINGS, INC.
Unaudited Pro Forma Consolidated Statement of Operations
For the Six Months Ended June 30, 1999
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Pre-Merger Post-Merger
SpectraSite Westower Merger SpectraSite
Pro Forma Pro Forma Adjustments Pro Forma
Revenues:
<S> <C> <C> <C> <C>
Site leasing................... $ 27,985 $ 927 $ - $ 28,912
Site construction.............. - 42,767 (948)(a) 41,819
Site acquisition............... 4,323 - - 4,323
------ ------ --- ------
Total revenues................. 32,308 43,694 (948) 75,054
Cost of operations:
Site leasing................... 11,946 355 - 12,301
Site construction.............. - 30,042 (568)(a) 29,474
Site acquisition............... 893 - - 893
------ ------ --- ------
Total cost of operations....... 12,839 30,397 (568) 42,668
Selling, general and
administrative expenses........ 9,660 9,127 - 18,787
Depreciation and amortization... 20,896 2,090 6,650 (b) 29,138
(498)(c)
Restructuring and other
non-recurring charges.......... 600 1,519 - 2,119
----- ----- ------ ------
Operating income (loss)......... (11,687) 561 (6,532) (17,658)
Other income (expense):
Interest income................ 4,727 99 - 4,826
Interest expense............... (40,380) (1,692) 1,185 (d) (40,887)
Other expense.................. - 220 - 220
------ ----- ----- ------
Total other income (expense)... (35,653) (1,373) 1,185 (35,841)
------ ----- ----- ------
Income before income taxes...... (47,340) (812) (5,347) (53,499)
Provision (benefit) for income
taxes.......................... - 676 - 676
------ ----- ----- ------
Net loss......................... $(47,340) $(1,488) $(5,347) $(54,175)
====== ===== ===== ======
Net loss per share:
Basic and diluted.............. $ (2.91)(e)
=====
Weighted average number of shares
of common stock outstanding:
Basic and diluted.............. 18,607
======
</TABLE>
See accompanying notes to pro forma
consolidated statement of operations.
P-9
<PAGE>
POST-MERGER SPECTRASITE HOLDINGS, INC.
Notes to Unaudited Pro Forma Consolidated Statement of Operations
For the Six Months Ended June 30, 1999
(in thousands)
(a) Reflects the elimination of intercompany site construction revenues and
costs of site construction for towers built by Westower for SpectraSite
during the six months ended June 30, 1999.
(b) Reflects amortization of goodwill as if the merger of Westower and
SpectraSite had occurred on January 1, 1998. Goodwill is amortized over 15
years.
(c) Reflects adjustments to eliminate amortization of historical goodwill of
Westower of $818 and to convert Westower tower depreciation from 20 years
to 15 years, increasing expense by $320.
(d) Reflects adjustments to eliminate interest expense as if Westower's credit
facility and its $15,000 convertible note from BET Associates were paid in
full on January 1, 1998.
(e) SpectraSite's earnings per share for the six months ended June 30, 1999
reflects the adoption of Statement of Financial Accounting Standards No.
128, "Earnings Per Share", which requires companies to compute earnings per
share under two different methods, basic and diluted. The weighted average
common shares outstanding at June 30, 1999 reflects the issuance of 15,497
shares of SpectraSite common stock in exchange for all of the outstanding
shares of Westower common stock.
Had SpectraSite been in a net income position, diluted earnings per share
would have included potential common shares related to its convertible
preferred stock and outstanding options. These potential common shares
were not included in the diluted earnings per share calculation for the six
months ended June 30, 1999 because the effect would have been antidilutive.
P-10
<PAGE>
PRE-MERGER SPECTRASITE HOLDINGS, INC.
Unaudited Pro Forma Consolidated Statements of Operations
For the Year Ended December 31, 1998
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Pre-Merger
SpectraSite
Historical Nextel Airadigm Pro Forma
Revenues:
<S> <C> <C> <C> <C>
Site leasing........................ $ 656 $ 49,388(a) $ 1,007 $ 51,051
Site acquisition.................... 8,142 - - 8,142
----- ------ ----- ------
Total revenues...................... 8,798 49,388 1,007 59,193
Cost of operations:
Site leasing........................ 299 22,830(b) 326 23,455
Site acquisition.................... 2,492 - - 2,492
----- ------ ---- ------
Total cost of operations............ 2,791 22,830 326 25,947
Selling, general and administrative
expenses............................ 9,690 -(c) - 9,690
Depreciation and amortization........ 1,268 39,000(d) 750 41,018
----- ------ --- ------
Operating income (loss).............. (4,951) (12,442) (69) (17,462)
Other income (expense):
Interest income..................... 3,569 - - 3,569
Interest expense.................... (8,170) (67,865)(e) - (76,035)
Other expense....................... 473 - - 473
----- ------ --- ------
Total other income (expense) ...... (4,128) (67,865) - (71,993)
----- ------ --- ------
Net loss............................. $(9,079) $ (80,307) $ (69) $ (89,455)
===== ======= ==== ======
Net loss............................. $(9,079)
Accretion of redemption value of
preferred stock..................... (2,156)
-----
Net loss applicable to common
shareholders........................ $(11,235)
======
Net loss per share:
Basic and diluted ................. $ (12.09)
=====
Weighted average number of shares
of common stock outstanding:
Basic and diluted .................. 929
===
</TABLE>
See accompanying notes to unaudited pro forma
consolidated statement of operations.
P-11
<PAGE>
PRE-MERGER SPECTRASITE HOLDINGS, INC.
Notes to Unaudited Pro Forma Consolidated Statement of Operations
For the Year Ended December 31, 1998
(in thousands)
(a) Consists of $8,622 of historical co-location revenues received by Nextel
prior to the acquisition, which are based on fixed payment lease terms.
This information was provided to us by Nextel. Also consists of $40,766 of
additional revenues to be recognized by SpectraSite under the terms of the
Nextel master site lease agreement.
(b) Reflects certain direct operating expenses, primarily ground lease
payments, historical routine maintenance and property taxes associated with
the towers, paid by Nextel prior to the acquisition.
(c) SpectraSite expects that it will incur incremental operating expenses as a
result of the Nextel tower acquisition. Such incremental expenses are
currently estimated to amount to approximately $3,500 per year. These
incremental operating expenses are based upon management's estimates rather
than on any contractual obligation; as such, these amounts have not been
presented as adjustments in the accompanying pro forma financial
statements.
(d) Reflects the depreciation of the acquired towers calculated on a
straight-line basis over 15 years.
(e) Reflects adjustment to interest expense as if SpectraSite had issued its
12% senior discount notes due 2008 and its 11 1/4% senior discount notes
due 2009, as well as completed the Nextel tower acquisition and related
financing transactions, on January 1, 1998. The table below outlines the
adjustment:
Pro forma interest expense:
Commitment fees on credit facility........... $ 4,000
$150,000 of term loan at 8.50%............... 12,750
$125,000 (gross proceeds) of 2008 notes at
12.00%..................................... 15,450
$340,004 (gross proceeds) of 2009 notes at
11.25%....................................... 39,326
Amortization of debt issuance costs.......... 4,272
Less: historical interest expense of 2008
notes........................................ (7,933)
-----
Total adjustment................... $ 67,865
======
P-12
<PAGE>
WESTOWER CORPORATION AND SUBSIDIARIES
Unaudited Pro Forma Consolidated Statements of Operations
For the Twelve Months Ended December 31, 1998
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Historical Historical
-------------------------------- -------------------
Total
Westower Westower Westower Westower Cord Summit Total
1/1/98- 3/1/98 - 10/1/98- 1/1/98- 1/1/98- 1/1/98- Koch Other Westower
2/28/98 9/30/98 12/31/98 12/31/98 8/31/98 11/11/98 Adjustments Adjustments Pro Forma
------- -------- -------- -------- ------- -------- ----------- ----------- ---------
Revenues
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Site leasing.................. $ 49 $ 170 $ 74 $ 293 $ - $ - $ 1,364(a) $ - $ 1,657
Site construction............. 7,784 31,774 24,914 64,472 6,714 8,818 - - 80,004
----- ------ ------ ------ ----- ----- -----
Total revenues................ 7,833 31,944 24,988 64,765 6,714 8,818 1,364 - 81,661
Cost of operations:
Site leasing.................. 11 25 13 49 - - 738(b) - 787
Site construction............. 5,971 23,833 18,131 47,935 6,219 6,707 - - 60,861
----- ------ ------ ------ ----- ----- --- --- ------
Total cost of operations...... 5,982 23,858 18,144 47,984 6,219 6,707 738 - 61,648
Selling, general and
administrative 991 4,958 4,258 10,207 2,636 1,040 - 73(f) 13,956
expenses......................
Depreciation and amortization... 149 578 589 1,316 132 279 850(c) 673(g) 3,250
Merger related expenses......... - 327 77 404 - - - - 404
--- ----- ----- ----- ----- --- --- ---- -----
Operating income (loss)......... 711 2,223 1,920 4,854 (2,273) 792 (224) (746) 2,403
Other income (expense):
Interest income............... 14 130 53 197 4 - - - 201
Interest expense.............. (42) (771) (572) (1,385) (45) (93) (1,275)(d) - (2,798)
Other income.................. 128 (2) - 126 17 30 - - 173
--- --- --- ----- ---- --- ----- ----- -----
Total other income 100 (643) (519) (1,062) (24) (63) (1,275) - (2,424)
--- --- --- ----- ---- --- ----- ----- -----
(expense) ......................
Income (loss) before income
taxes......................... 811 1,580 1,401 3,792 (2,297) 729 (1,499) (746) (21)
Provision for (benefit from)
income taxes.................... 556 351 610 1,517 (919) - (600)(e) 262(e) 260
--- ----- --- ----- ----- ---- ----- ----- ----
Net income (loss)............... $ 255 $ 1,229 $ 791 $ 2,275 $(1,378) $ 729 $ (899) $(1,008) $ (281)
=== ===== === ===== ====== ==== ===== ===== ====
Net income per share
Basic................................. $ 0.34
====
Diluted............................... $ 0.29
====
Weighted average number of
shares of common stock
outstanding:
Basic................................. 6,786
=====
Diluted............................... 7,770
=====
</TABLE>
See accompanying notes to unaudited pro forma
consolidated statement of operations.
P-13
<PAGE>
WESTOWER CORPORATION AND SUBSIDIARIES
Notes to Unaudited Pro Forma Consolidated Statement of Operations
For the Twelve Months ended December 31, 1998
(a) Consists of additional revenues to be recognized by Westower in connection
with site lease agreements with Koch.
(b) Reflects certain direct operating expenses, primarily ground lease
payments, estimated routine maintenance, property taxes and insurance
associated with the towers.
(c) Reflects the depreciation of the acquired towers calculated on a
straight-line basis over 20 years.
(d) Reflects adjustment to interest expense related to additional borrowings
under Westower's credit facility to acquire the Koch towers, based on the
credit facility's approximate interest rate of 7.5%.
(e) Reflects a tax benefit for the Koch tower operating results and an increase
of the tax provision based on the pro forma operating results related to
the Cord and Summit acquisitions at Westower's estimated tax rate of 40%.
(f) Reflects adjustments in selling, general, and administrative expense
related to compensation of former owners of Cord and Summit.
(g) Reflects the amortization of goodwill as if the acquisitions of Cord and
Summit had each occurred on January 1, 1998. Goodwill is amortized over a
period of 20 years.
P-14
<PAGE>
POST-MERGER SPECTRASITE HOLDINGS, INC.
Unaudited Pro Forma Consolidated Statement of Operations
For the Year Ended December 31, 1998
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Pre-Merger Post-Merger
Pro Forma Westower Merger SpectraSite
SpectraSite ProForma Adjustments Pro Forma
----------- -------- ----------- -----------
Revenues:
<S> <C> <C> <C> <C>
Site leasing........................ $ 51,051 $ 1,657 $ - $ 52,708
Site construction................... - 80,004 (2,004)(a) 78,000
Site acquisition.................... 8,142 - - 8,142
------ ------ ------ -------
Total revenues...................... 59,193 81,661 (2,004) 138,850
Cost of operations:
Site leasing........................ 23,455 787 - 24,242
Site construction................... - 60,861 (1,403)(a) 59,458
Site acquisition.................... 2,492 - - 2,492
------ ------ ----- ------
Total cost of operations............ 25,947 61,648 (1,403) 86,192
Selling, general and administrative
expenses............................ 9,690 13,956 - 23,646
Depreciation and amortization......... 41,018 3,250 13,299(b) 56,902
(665)(c)
Merger related expenses............... - 404 - 404
------ ----- ------ ------
Operating income (loss)............... (17,462) 2,403 (13,235) (28,294)
Other income (expense):...............
Interest income..................... 3,569 201 - 3,770
Interest expense.................... (76,035) (2,798) 1,034(d) (77,799)
Other expense....................... 473 173 - 646
------ ----- ----- ------
Total other income (expense) ....... (71,993) (2,424) 1,034 (73,383)
------ ----- ------ -------
Income (loss) before income taxes..... (89,455) (21) (12,201) (101,677)
Provision for income taxes............ - 260 (153)(e) 107
------ ----- ------ -------
Net loss.............................. $(89,455) $ (281) $ (12,048) $ (101,784)
====== ===== ====== =======
Net loss per share:
Basic and diluted .................. $(5.52)(f)
====
Weighted average number of shares
of common stock outstanding:
Basic and diluted .................. 18,426
======
</TABLE>
See accompanying notes to unaudited pro forma statement of operations.
P-15
<PAGE>
POST-MERGER SPECTRASITE HOLDINGS, INC.
Notes to Unaudited Pro Forma Consolidated Statement of Operations
For the Year Ended December 31, 1998
(dollars in thousands)
(a) Reflects the elimination of intercompany site construction revenues and
costs of site construction for towers built by Westower for SpectraSite for
the year ended December 31, 1998.
(b) Reflects amortization of goodwill as if the merger of Westower and
SpectraSite had occurred on January 1, 1998. Goodwill is amortized over 15
years.
(c) Reflects adjustments to eliminate amortization of historical and pro forma
goodwill of Westower of $979 and to convert Westower tower depreciation
from 20 years to 15 years, increasing expense by $314.
(d) Reflects adjustments to eliminate interest expense as if Westower's credit
facility and the $15,000 convertible note were paid in full on January 1,
1998.
(e) Reflects a reduction of the tax provision based on the consolidated results
of post-merger SpectraSite.
(f) SpectraSite's earnings per share for the year ended December 31, 1998
reflects the adoption of Statement of Financial Accounting Standards No.
128, "Earnings Per Share", which requires companies to compute earnings per
share under two different methods, basic and diluted. The weighted average
common shares outstanding at December 31, 1998 reflects the issuance of
18,426 shares of SpectraSite common stock in exchange for all of the
outstanding shares of Westower common stock.
Had SpectraSite been in a net income position, diluted earnings per share
would have included potential common shares related to its convertible
preferred stock and outstanding options. These potential common shares were
not included in the diluted earnings per share calculation for the year
ended December 31, 1998 because the effect would have been antidilutive.
P-16
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SPECTRASITE HOLDINGS, INC.
Dated: September 16, 1999 By: /s/David P. Tomick
---------------------
David P. Tomick
Chief Financial Officer
<PAGE>
Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SPECTRASITE HOLDINGS, INC.
------------------------------------
Adopted in accordance with the
provisions of Section 242 of the General
Corporation Law of the State of Delaware
------------------------------------
I, Stephen H. Clark, President and Chief Executive Officer of SPECTRASITE
HOLDINGS, INC., a corporation organized and existing under and by virtue of the
General Corporation Law of the State of Delaware, as amended (the
"Corporation"), DO HEREBY CERTIFY as follows:
FIRST: Article 4.1 of the Amended and Restated Certificate of Incorporation
of the Corporation is hereby amended by deleting in its entirety and
substituting in lieu thereof the following new Article 4.1:
"4.1 Authorized Shares. The total number of shares of capital stock which
the Corporation shall have authority to issue is 370,749,625 shares, divided
into Three Hundred Million (300,000,000) shares of Common Stock, $0.001 par
value per share ("Common Stock") and Seventy Million, Seven Hundred Forty-Nine
Thousand Six Hundred Twenty-Five (70,749,625) shares of Preferred Stock, $0.001
par value per share (the "Preferred Stock"). The Preferred Stock shall have
three series: Series A Convertible Preferred Stock ("Series A Preferred
1
<PAGE>
Stock"), consisting of Three Million Four Hundred Sixty-Two Thousand Eight
Hundred Thirty (3,462,830) shares; Series B Convertible Preferred Stock ("Series
B Preferred Stock"), consisting of Seven Million (7,000,000) shares; and Series
C Convertible Preferred Stock ("Series C Preferred Stock"), consisting of Sixty
Million Two Hundred Eighty-Six Thousand Seven Hundred Ninety-Five (60,286,795)
shares. As used herein, the term "Preferred Stock" means the Series A Preferred
Stock, the Series B Preferred Stock and the Series C Preferred Stock,
share-for-share alike and without distinction as to class or series, except as
otherwise set forth herein or as the context otherwise requires."
SECOND: The foregoing amendment was duly adopted in accordance with Section
242 of the General Corporation Law of the State of Delaware by the affirmative
vote of the holders of a majority of the outstanding shares of capital stock of
this Corporation entitled to vote at a duly held meeting of stockholders.
IN WITNESS WHEREOF, SPECTRASITE HOLDINGS, INC. has caused this Certificate
of Amendment to be signed by Stephen H. Clark, its President and Chief Executive
Officer, who hereby acknowledges under penalties and perjury that the facts
herein stated are true and that this Certificate is his act and deed, this ____
day of August, 1999.
/s/ Stephen H. Clark
Stephen H. Clark
President and Chief Executive Officer
2
Exhibit 10.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of September 2,1999, by and
between SpectraSite Holdings, Inc., a Delaware corporation (the "Company"), and
CALVIN J. PAYNE (the "Employee").
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Agreement and
Plan of Merger among the Company, Westower Corporation, New W Acquisition Corp.,
SpectraSite, Inc., and W Acquisition Corp. (the "Merger Agreement"), the Company
agreed to enter into an Employment Agreement with the Employee effective as of
the date of the consummation of the Merger; and
WHEREAS, the Company desires to induce the Employee to enter
into employment with the Company for the period provided in this Agreement, and
the Employee is willing to accept such employment with the Company on a
full-time basis, all in accordance with the terms and conditions set forth
below;
NOW, THEREFORE, for and in consideration of the premises
hereof and the mutual covenants contained herein, the parties hereto hereby
covenant and agree as follows:
1. Employment. (a) The Company hereby agrees to employ the
Employee, and the Employee hereby agrees to accept such employment with the
Company, beginning on the date hereof and continuing for the period set forth in
Section 2 hereof, all upon the terms and conditions hereinafter set forth.
(b) The Employee affirms and represents that as
of the commencement of his employment by the Company on the date hereof he is
under no obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement.
2. Term of Employment. (a) Unless earlier terminated as
provided in this Agreement, the term of the Employee's employment under this
Agreement shall be for a period beginning on the date hereof and ending on the
third anniversary of the date hereof (the "Initial Term").
1
<PAGE>
(b) The term of the Employee's employment under
this Agreement shall be automatically renewed for additional one-year terms
(each a "Renewal Term") upon the expiration of the Initial Term or any Renewal
Term unless the Company or the Employee delivers to the other, at least one year
prior to the expiration of the Initial Term or the then current Renewal Term, as
the case may be, a written notice specifying that the term of the Employee's
employment will not be renewed at the end of the Initial Term or such Renewal
Term, as the case may be. The period from the date hereof until the third
anniversary of said date or, in the event that the Employee's employment
hereunder is earlier terminated as provided herein or renewed as provided in
this Section 2(b), such shorter or longer period, as the case may be, is
hereinafter called the "Employment Term."
3. Duties. The Employee shall be employed as Executive Vice
President--Construction Operations of the Company, shall faithfully and
competently perform such duties as inhere in such position and shall also
perform and discharge such other executive employment duties and
responsibilities as the Board of Directors and/or the Chief Executive Officer of
the Company shall from time to time determine. The Employee shall perform his
duties principally at Surrey, British Columbia with such travel to such other
locations from time to time as the Board of Directors and/or the Chief Executive
Officer of the Company may reasonably prescribe. Except as may otherwise be
approved in advance by the Board of Directors and/or the Chief Executive Officer
of the Company, and except during vacation periods and reasonable periods of
absence due to sickness, personal injury or other disability, the Employee shall
devote his full business time throughout the Employment Term to the services
required of him hereunder. The Employee shall render his business services
exclusively to the Company and its subsidiaries during the Employment Term and
shall use his best efforts, judgment and energy to improve and advance the
business and interests of the Company and its subsidiaries in a manner
consistent with the duties of his position. Nothing contained in this Section 3
shall preclude the Employee from performing services for charitable or
not-for-profit community organizations, provided that such activities do not
interfere with the Employee's performance of his duties and responsibilities
under this Agreement.
4. Salary. As compensation for the performance by the Employee
of the services to be performed by the Employee hereunder during the Employment
Term, the Company shall pay the Employee a base salary at the annual rate of One
Hundred Sixty-Five Thousand Dollars ($165,000) (said amount, together with any
increases thereto as may be determined from time to time by the Board of
Directors of the Company in its sole discretion, being hereinafter referred to
as "Salary"). Any Salary payable hereunder shall be paid in regular intervals in
accordance with the Company's payroll practices from time to time in effect.
5. Benefits. During the Employment Term, the Employee
shall:
2
<PAGE>
(i) be eligible to participate in employee
fringe benefits and pension and/or profit sharing plans that may be
provided by the Company for its senior executive employees in accordance
with the provisions of any such plans, as the same may be in effect from
time to time;
(ii) be eligible to participate in any medical
and health plans or other employee welfare benefit plans that may be
provided by the Company for its senior executive employees in accordance
with the provisions of any such plans, as the same may be in effect from
time to time;
(iii) be entitled to the number of paid vacation
days in each calendar year determined by the Company from time to time for
its senior executive officers, provided that such number of paid vacation
days in each calendar year shall not be less than twenty work days (four
calendar weeks); the Employee shall also be entitled to all paid holidays
given by the Company to its senior executive officers;
(iv) be eligible for consideration by the Board
of Directors of the Company for awards of stock options under any stock
option plan which may be established by the Company for its and its
subsidiaries' key employees, the amount, if any, of shares for which
options may be granted to Employee to be in the sole discretion of the
Board of Directors of the Company;
(v) be entitled to sick leave, sick pay and
disability benefits in accordance with any Company policy that may be
applicable to senior executive employees from time to time; and
(vi) be entitled to reimbursement for all
reasonable and necessary out-of-pocket business expenses incurred by the
Employee in the performance of his duties hereunder in accordance with the
Company's normal policies from time to time in effect (including, without
limitation, relocation expenses).
6. Confidential Information. The Employee hereby covenants,
agrees and acknowledges as follows:
(a) The Employee has and will have access to and
will participate in the development of or be acquainted with confidential or
proprietary information and trade secrets related to the business of the Company
and any present or future subsidiaries or affiliates of the Company
(collectively with the Company, the "Companies"), including but not limited to
(i) customer lists; claims histories, adjustments and settlements and related
records and compilations of information; the identity, lists or descriptions of
any new customers, referral sources or organizations;
3
<PAGE>
financial statements; cost reports or other financial information; contract
proposals or bidding information; business plans; training and operations
methods and manuals; personnel records; software programs; reports and
correspondence; and management systems, policies or procedures, including
related forms and manuals; (ii) information pertaining to future developments
such as future marketing or acquisition plans or ideas, and potential new
business locations; (iii) confidential or non-public information relating to
business operations and strategic plans of third parties with which the
Companies have or may be assessing commercial arrangements, including, without
limitation, site build and deployment plans and schedules, search ring and site
locations or potential locations, actual or projected wireless system
subscribers and capital expenditures and operating cost information ("Third
Party Information") and (iv) all other tangible and intangible property, which
are used in the business and operations of the Companies but not made public.
The information and trade secrets relating to the business of the Companies
described hereinabove (including Third Party Information) in this paragraph (a)
are hereinafter referred to collectively as the "Confidential Information,"
provided that the term Confidential Information shall not include any
information (x) that is or becomes generally publicly available (other than as a
result of violation of this Agreement by the Employee), (y) that the Employee
receives on a nonconfidential basis from a source (other than the Companies or
their representatives) or, in the case of Third Party Information, from a source
(other than the Companies, the third parties to which such information relates
or their respective representatives) that is not known by him to be bound by an
obligation of secrecy or confidentiality to any of the Companies (or such third
parties, in the case of Third Party Information) or (z) that was in the
possession of the Employee prior to disclosure by the Companies (or such third
parties, in the case of Third Party Information).
(b) The Employee shall not disclose, use or make
known for his or another's benefit any Confidential Information or use such
Confidential Information in any way except as is in the best interests of the
Companies in the performance of the Employee's duties under this Agreement. The
Employee may disclose Confidential Information when required by a third party
and applicable law or judicial process, but only after providing immediate
notice to the Company at any third party's request for such information, which
notice shall include the Employee's intent with respect to such request.
(c) The Employee acknowledges and agrees that a
remedy at law for any breach or threatened breach of the provisions of this
Section 6 would be inadequate and, therefore, agrees that the Companies shall be
entitled to injunctive relief in addition to any other available rights and
remedies in case of any such breach or threatened breach by the Employee (and
the Employee hereby waives any requirement that any of the Companies provide a
bond or other security in connection with the issuance of any such injunction);
provided, however, that nothing contained
4
<PAGE>
herein shall be construed as prohibiting the Companies from pursuing any other
rights and remedies available for any such breach or threatened breach.
(d) The Employee agrees that upon termination of
his employment with the Company for any reason, the Employee shall forthwith
return to the Company all Confidential Information in whatever form maintained
(including, without limitation, computer discs and other electronic media).
(e) The obligations of the Employee under this
Section 6 shall, except as otherwise provided herein, survive the termination of
the Employment Term and the expiration or termination of this Agreement.
(f) Without limiting the generality of Section
10 hereof, the Employee hereby expressly agrees that the foregoing provisions of
this Section 6 shall be binding upon the Employee's heirs, successors and legal
representatives.
7. Termination. (a) The Employee's employment hereunder
shall be terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) the Employee's inability to perform his
duties on account of disability or incapacity for a period of one hundred
eighty (180) or more days, whether or not consecutive, within any period of
twelve (12) consecutive months;
(iii) the Company giving written notice, at any
time, to the Employee that the Employee's employment is being terminated
"for cause" (as defined below);
(iv) the Company giving written notice, at any
time, to the Employee that the Employee's employment is being terminated
other than pursuant to clause (i), (ii) or (iii) above; or
(v) the Employee terminates his employment
hereunder for any reason whatsoever (whether by reason of retirement,
resignation or otherwise).
The following actions, failures and events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iii) above: (A) a conviction of the Employee of, or the entering of a plea of
nolo contendere by the Employee with respect to, a felony, (B) dependence on, or
habitual abuse of, controlled substances or alcohol (in the case of alcohol
abuse, that has a material adverse affect on
5
<PAGE>
Employee's performance of his obligations under this Agreement) or acts of
dishonesty by the Employee that are materially detrimental to one or more of the
Companies, (C) wilful misconduct by the Employee that materially damages the
business of one or more of the Companies, (D) gross negligence by the Employee
in the performance of, or wilful disregard by the Employee of, his material
obligations under this Agreement or otherwise relating to his employment, which
gross negligence or wilful disregard continues unremedied for a period of
fifteen (15) days after written notice thereof to the Employee or (E) failure by
the Employee to obey the reasonable and lawful orders and policies of the Board
of Directors and/or the Chief Executive Officer that are material to and
consistent with the provisions of this Agreement (provided that, in the case of
an indictment described in clause (A) above, and in the case of clauses (B), (C)
and (E) above, the Employee shall have received written notice of such proposed
termination (which notice shall state the Sections of this Agreement pursuant to
which such termination is being effected and a description of the facts
supporting such termination) and a reasonable opportunity (together with the
Employee's counsel to discuss the matter with the Board of Directors of the
Company, followed by a notice that the Board of Directors of the Company adheres
to its position).
(b) In the event that the Employee's employment
terminates pursuant to clause (i) or (ii) of Section 7(a) above or is terminated
by the Company pursuant to clause (iv) of Section 7(a) above, whether during the
Initial Term or during any Renewal Term pursuant to Section 2(b) above, then (i)
during the period beginning on the date of such termination and ending on the
last day of the Applicable Period (as defined in Section 9(a)), the Company
shall pay to the Employee, as severance pay or liquidated damages or both,
monthly payments equal to one-twelfth of the rate per annum of his Salary at the
time of such termination provided, however, that no such payments shall be
required to be made if the Employee fails to comply with his obligations under
Section 9 below and (ii) the Company shall continue to provide the Employee with
the health insurance benefits provided to other employees of the Company
(including employer contributions) from the date of such termination until the
earlier to occur of (x) the last day of the Applicable Period or (y) the date
upon which the Employee becomes eligible for coverage under the health insurance
plan of another employer
(c) Notwithstanding anything to the contrary
expressed or implied herein, except as required by applicable law and except as
set forth in Section 7(b) above, the Company (and its affiliates) shall not be
obligated to make any payments to the Employee or on his behalf of whatever kind
or nature by reason of the Employee's cessation of employment (including,
without limitation, by reason of termination of the Employee's employment by the
Company's for "cause"), other than (i) such amounts, if any, of his Salary as
shall have accrued and remained unpaid as of the date of said cessation and (ii)
such other amounts, if any, which may be then
6
<PAGE>
otherwise payable to the Employee pursuant to the terms of the Company's
benefits plans.
(d) No interest shall accrue on or be paid with
respect to any portion of any payments hereunder.
8. Non-Assignability. (a) Neither this Agreement nor any right
or interest hereunder shall be assignable by the Employee or his beneficiaries
or legal representatives without the Company's prior written consent; provided,
however, that nothing in this Section 8(a) shall preclude the Employee from
designating a beneficiary to receive any benefit payable hereunder upon his
death or incapacity.
(b) Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or similar process or to
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.
9. Restrictive Covenants.
(a) Competition. During the Employment Term and
during the Applicable Period (as defined below), the Employee will not directly
or indirectly (as a director, officer, executive employee, manager, consultant,
independent contractor, advisor or otherwise) engage in competition with, or own
any interest in, perform any services for, participate in or be connected with
any business or organization which engages in competition with any of the
Companies within the meaning of Section 9(d), provided, however, that the
provisions of this Section 9(a) shall not be deemed to prohibit the Employee's
ownership of not more than two percent (2%) of the total shares of all classes
of stock outstanding of any publicly held company, or ownership, whether through
direct or indirect stock holdings or otherwise, of one percent (1%) or more of
any other business. For purposes of this Agreement, the "Applicable Period"
shall mean the twelve (12) month period following the termination of the
Employee's employment hereunder for any reason whatsoever.
(b) Non-Solicitation. During the Employment
Term and during the Applicable Period, the Employee will not directly or
indirectly induce or attempt to induce any management employee of any of the
Companies to leave the employ of the Company or such subsidiary or affiliate, or
in any way interfere with the relationship between any of the Companies and any
employee thereof.
(c) Non-Interference. During the Employment
Term and during the Applicable Period, the Employee will not directly or
indirectly hire, engage,
7
<PAGE>
send any work to, place orders with, or in any manner be associated with any
supplier, contractor or other business relation of any of the Companies if such
action would be known by him to have a material adverse effect on the business,
assets or financial condition of any of the Companies or materially interfere
with the relationship between any such person or entity and any of the
Companies.
(d) Certain Definitions.
(i) For purposes of this Section 9, a person
or entity (including, without limitation, the Employee) shall be
deemed to be a competitor of one or more of the Companies, or a person
or entity (including, without limitation, the Employee) shall be
deemed to be engaging in competition with one or more of the
Companies, if such person or entity engages in the business of
acquiring or constructing towers for telecom carriers or operators or
engaging in any other business engaged in by the Companies at the time
of termination of the Employee's employment with the Company, in
either case in the geographic region encompassing the service areas in
which any of the Companies conduct, or had an established plan to
begin conducting, their businesses at the time of termination of the
Employee's employment with the Company.
(ii) For purposes of this Section 9, no
corporation or entity that may be deemed to be an affiliate of the
Companies solely by reason of its being controlled by, or under common
control with, Welsh, Carson, Anderson & Stowe VIII, L.P. or any of
their respective affiliates other than the Companies, will be deemed
to be an affiliate of the Companies.
(e) Certain Representations of the Employee.
In connection with the foregoing provisions of this Section 9, the Employee
represents that his experience, capabilities and circumstances are such that
such provisions will not prevent him from earning a livelihood. The Employee
further agrees that the limitations set forth in this Section 9 (including,
without limitation, time and territorial limitations) are reasonable and
properly required for the adequate protection of the current and future
businesses of the Companies. It is understood and agreed that the covenants made
by the Employee in this Section 9 (and in Section 6 hereof) shall survive the
expiration or termination of this Agreement.
(f) Injunctive Relief. The Employee acknowledges
and agrees that a remedy at law for any breach or threatened breach of the
provisions of Section 9 hereof would be inadequate and, therefore, agrees that
the Company and any of its subsidiaries or affiliates shall be entitled to
injunctive relief in addition to any other available rights and remedies in
cases of any such breach or threatened breach (and the Employee hereby waives
any requirement that any of the Companies provide a
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bond or other security in connection with the issuance of any such injunction);
provided, however, that nothing contained herein shall be construed as
prohibiting the Company or any of its affiliates from pursuing any other rights
and remedies available for any such breach or threatened breach.
10. Binding Effect. Without limiting or diminishing the effect
of the provisions affecting assignment of this Agreement, this Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, legal representatives and assigns.
11. Notices. All notices which are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and (i) delivered personally,
(ii) mailed by certified or registered mail, return receipt requested and
postage prepaid, (iii) sent via a nationally recognized overnight courier or
(iv) sent via facsimile confirmed in writing to the recipient, if to the Company
at the Company's principal place of business, and if to the Employee, at his
home address most recently filed with the Company, or to such other address or
addresses as either party shall have designated in writing to the other party
hereto, provided, however, that any notice sent by certified or registered mail
shall be deemed delivered on the date of delivery as evidenced by the return
receipt.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
13. Severability. The Employee agrees that in the event that
any court of competent jurisdiction shall finally hold that any provision of
Section 6 or 9 hereof is void or constitutes an unreasonable restriction against
the Employee, the provisions of such Section 6 or 9 shall not be rendered void
but shall apply with respect to such extent as such court may judicially
determine constitutes a reasonable restriction under the circumstances. If any
part of this Agreement other than Section 6 or 9 is held by a court of competent
jurisdiction to be invalid, illegible or incapable of being enforced in whole or
in part by reason of any rule of law or public policy, such part shall be deemed
to be severed from the remainder of this Agreement for the purpose only of the
particular legal proceedings in question and all other covenants and provisions
of this Agreement shall in every other respect continue in full force and effect
and no covenant or provision shall be deemed dependent upon any other covenant
or provision.
14. Waiver. Failure to insist upon strict compliance with any
of the terms, covenants or conditions hereof shall not be deemed a waiver of
such term, covenant or condition, nor shall any waiver or relinquishment of any
right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
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15. Arbitration. With the exception of any dispute regarding
the Employee's compliance with the provisions of Sections 6 and 9 above, any
dispute relating to or arising out of the provisions of this Agreement shall be
decided by arbitration in Cary, North Carolina, in accordance with the Expedited
Arbitration Rules of the American Arbitration Association then obtaining, unless
the parties mutually agree otherwise in a writing signed by both parties. This
undertaking to arbitrate shall be specifically enforceable. The decision
rendered by the arbitrator will be final and judgment may be entered upon it in
accordance with appropriate laws in any court having jurisdiction thereof. Each
of the parties shall pay his or its own legal fees associated with such
arbitration.
16. Entire Agreement; Modifications. This Agreement
constitutes the entire and final expression of the agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements, oral
and written, between the parties hereto with respect to the subject matter
hereof. This Agreement may be modified or amended only by an instrument in
writing signed by both parties hereto.
17. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Employee have duly
executed and delivered this Agreement as of the day and year first above
written.
SPECTRASITE HOLDINGS, INC.
By /s/ Stephen H. Clark
Name: Stephen H. Clark
Title: Chief Executive Officer
/s/ Calvin J. Payne
Calvin J. Payne
Exhibit 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
entered into as of August 23, 1999, by and among SpectraSite Communications,
Inc., a Delaware corporation (the "Borrower"), SpectraSite Holdings, Inc., a
Delaware corporation ("Holdco"), CIBC World Markets Corp. (f/k/a CIBC
Oppenheimer Corp.) and Credit Suisse First Boston, as arrangers (the
"Arrangers"), Credit Suisse First Boston, as syndication agent (the "Syndication
Agent"), Canadian Imperial Bank of Commerce, as administrative agent (the
"Administrative Agent"), Canadian Imperial Bank of Commerce, as collateral agent
(the "Collateral Agent") and the other Credit Parties signatory hereto (the
"Credit Parties").
W I T N E S S E T H:
WHEREAS, the Borrower, Holdco, the Arrangers, the Syndication
Agent, the Administrative Agent, the Collateral Agent and the Credit Parties are
parties to that certain Credit Agreement dated as of April 20, 1999 (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "Credit Agreement"); and
WHEREAS, Holdco has formed a new wholly-owned Subsidiary, W
Acquisition Corp., a Washington corporation ("Acquisition Corp."); and
WHEREAS, on May 15, 1999, Holdco and Acquisition Corp. entered
into an Agreement and Plan of Merger (as in effect on the date hereof, the
"Merger Agreement") with Westower Corporation, a Washington corporation
("Westower"), pursuant to which Acquisition Corp. will merge with and into
Westower, which will then become a wholly-owned Subsidiary of Holdco (such
transaction being hereinafter referred to as the "Westower Acquisition"); and
WHEREAS, pursuant to the Merger Agreement, each existing
shareholder of Westower will receive 1.81 shares of the common stock of Holdco
in exchange for each share of the common stock of Westower owned by such
shareholder, which exchange shall result in the existing Westower shareholders
becoming the owners of approximately twenty percent (20%) of the total equity
interest of Holdco; and
WHEREAS, simultaneous with the closing of the Westower
Acquisition, Holdco will repay approximately $70,000,000 in existing
Indebtedness of Westower; and
WHEREAS, immediately following consummation of the Westower
Acquisition, Holdco desires to contribute all of its ownership interest in
Westower to the Borrower, and thereupon, Westower will become a wholly-owned
Subsidiary of the Borrower; and
WHEREAS, the Borrower desires to enter into an arrangement with
NTA, LLC, a Massachusetts limited liability company ("NTA"), pursuant to which
the Borrower will, among other things, use proceeds of the Senior Loans and/or
cash on hand to purchase an equity interest
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in, and to make certain loans to, Concourse Communications Group, L.L.C., a
Delaware limited liability company ("Newco"), which will be a joint venture
between NTA and the Borrower (the "NTA Investment"); and
WHEREAS, the Borrower and Holdco have requested, and the
Arrangers, the Syndication Agent, the Administrative Agent, the Collateral Agent
and the Credit Parties have agreed, to amend the Credit Agreement as set forth
herein in order to permit consummation of the Westower Acquisition and the NTA
Investment and the transactions contemplated in connection therewith;
NOW THEREFORE, in consideration of the premises set forth above,
the terms and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Credit Agreement, as amended hereby, except as
otherwise defined or limited herein, and further agree, subject to the
conditions precedent to this Amendment hereinafter set forth, as follows:
1. Amendments to Article 1.
(a) Article 1 of the Credit Agreement, Definitions,
is hereby modified and amended by adding the following new
definitions to be placed in appropriate alphabetical order:
"'Foreign Westower Subsidiaries' shall mean the
Subsidiaries of Westower existing as of the Westower Acquisition
Date that are not organized under the laws of the United States or
any state thereof or the District of Columbia.
"'NTA' shall mean NTA, LLC, a Massachusetts limited
liability company.
"'NTA Investment' shall mean the Investment by the
Borrower in the NTA Joint Venture (including the purchase of
one-third (1/3) of the issued and outstanding equity interests of
the NTA Joint Venture and the making of certain loans to the NTA
Joint Venture) in an aggregate amount not to exceed $20,000,000.
"'NTA Investment Documents' shall mean the duly executed
documents executed in connection with the NTA Investment,
including, without limitation, copies of other consents required
to be obtained in connection with the NTA Investment and copies of
any documentation evidencing the credit facility extended to the
NTA Joint Venture by the Borrower.
"'NTA Joint Venture' shall mean Concourse Communications
Group, L.L.C., a Delaware limited liability company and a joint
venture between NTA and the Borrower.
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"'W Acquisition Corp.' shall mean W Acquisition Corp., a
Washington corporation and a wholly-owned Subsidiary of Holdco.
"'Westower' shall mean Westower Corporation, a Washington
corporation.
"'Westower Acquisition' shall mean the Acquisition of
Westower by Holdco pursuant to terms and conditions of the
Westower Merger Agreement and the subsequent transfer by Holdco to
the Borrower of all of the issued and outstanding Capital Stock of
Westower.
"'Westower Acquisition Date' shall mean the date on which
the Westower Acquisition shall be consummated.
"'Westower Merger Agreement' shall mean that certain
Agreement and Plan of Merger dated as of May 15, 1999, as amended,
among Westower, Holdco and W Acquisition Corp., and all schedules
and exhibits thereto and documents executed in connection
therewith."
(b) Article 1 of the Credit Agreement, Definitions,
is hereby further modified and amended by deleting the existing definition of
"Change of Control" and by substituting the following in lieu thereof:
"'Change of Control' shall mean any of the following:
"(i) prior to an Initial Public Offering, the
Controlling Shareholders cease to be the 'beneficial owners' (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly
or indirectly, of a majority in the aggregate of the total voting
power of the voting Capital Stock of Holdco, whether as a result
of issuance of securities of Holdco, any merger, consolidation,
liquidation or dissolution of Holdco, any direct or indirect
transfer of securities by Holdco or otherwise (for purposes of
this clause (i) and clause (ii) below, the Controlling
Shareholders shall be deemed to beneficially own any voting
Capital Stock of an entity (the 'specified entity') held by any
other entity (the 'parent entity') so long as the Controlling
Shareholders beneficially own (as so defined), directly or
indirectly, in the aggregate a majority of the voting power of the
voting Capital Stock of the parent entity); or
"(ii) subsequent to an Initial Public Offering,
any 'person' (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more Controlling
Shareholders, is or becomes the beneficial owner (as defined in
clause (i) above, except that for purposes of this clause (ii)
such person shall be deemed to have 'beneficial ownership' of all
shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than thirty-five percent
(35%) of the total voting power of the voting Capital Stock of
Holdco; provided, however, that the Controlling Shareholders do
not have the right or ability by voting power, contract or
otherwise,
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to elect or designate for election a majority of the board of
directors of Holdco (for the purposes of this clause (ii), such
other person shall be deemed to beneficially own any voting
Capital Stock of a specified entity held by a parent entity, if
such other person is the beneficial owner (as defined in this
clause (ii)), directly or indirectly, of more than thirty-five
percent (35%) of the voting power of the voting Capital Stock of
such parent entity and the Controlling Shareholders 'beneficially
own' (as defined in clause (i) above), directly or indirectly, in
the aggregate a lesser percentage of the voting power of the
voting Capital Stock of such parent entity and do not have the
right or ability by voting power, contract or otherwise, to elect
or designate for election of a majority of the board of directors
of such parent entity); or
"(iii) during any period of two (2) consecutive
years (or, in the case this event occurs within the first two (2)
years after the Agreement Date, such shorter period as shall have
begun on the Agreement Date), 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 of directors
or whose nomination for election by the shareholders of Holdco was
approved by a vote of a majority of the directors of Holdco 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 of Holdco then in office; or
"(iv) Holdco's merger or consolidation with or
into another Person or the merger of another Person with or into
Holdco if Holdco's securities that are outstanding immediately
prior to such transaction and which represent one hundred percent
(100%) of the aggregate voting power of Holdco's Voting Stock are
changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities
of the surviving corporation that represent immediately after such
transaction, at least a majority of the aggregate voting power of
the Voting Stock of the surviving corporation; or
"(v) the sale of all or substantially all of
Holdco's assets to another Person, other than a Controlling
Shareholder or a Person that is controlled by the Controlling
Shareholders; or
"(vi) the failure of Holdco to own and control,
free of any Lien or encumbrance other than Liens in favor of the
Collateral Agent and Permitted Liens, one hundred percent (100%)
of the issued and outstanding Capital Stock of the Borrower (other
than any Permitted High Yield Securities); or
"(vii) the failure of the Borrower to own and
control, free of any Lien or encumbrance other than Liens in favor
of the Collateral Agent and Permitted Liens, one hundred percent
(100%) of the issued and outstanding Capital Stock of Tower Sub
and each of its other Subsidiaries (other than the non-wholly
owned Subsidiaries of Westower identified on Schedule 5.1(c))."
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2. Amendments to Section 2.7.
(a) Section 2.7 of the Credit Agreement, Mandatory
Repayments, is hereby modified and amended by deleting in its entirety existing
subsection (a) and by substituting the following in lieu thereof:
"(a) Excess Cash Flow. Commencing with respect to the
fiscal year of the Borrower ended December 31, 2002, and with
respect to each fiscal year thereafter during the term of this
Agreement, on or prior to the Excess Cash Flow Recapture Date with
respect to each such fiscal year, the Borrower shall make a
prepayment of the outstanding principal amount of the Senior Loans
in an amount equal to seventy-five percent (75%) of Excess Cash
Flow for such fiscal year; provided, however, that, in the event
that the Borrower shall have maintained a Leverage Ratio less than
or equal to 4.00 to 1.00 for two (2) consecutive fiscal quarters,
the amount of the prepayment due under this Section 2.7(a) shall
at all times thereafter be reduced to fifty percent (50%) of
Excess Cash Flow. The amount of any prepayment made by the
Borrower pursuant to this Section 2.7(a) shall be applied to
prepay the Senior Loans as set forth in Section 2.7(e) below."
(b) Section 2.7 of the Credit Agreement, Mandatory
Repayments, is hereby further modified and amended by deleting in its entirety
existing subsection (c) and by substituting the following in lieu thereof:
"(c) Debt or Equity Issuance. If, after the Agreement
Date, (i) Holdco shall conduct any public or private issuance of
any Funded Debt or any Convertible Securities (other than the
issuance of the Holdco 2009 Notes in an amount not to exceed
$340,003,656) (each a "Debt Offering"), or (ii) the Borrower or
Holdco shall issue any Capital Stock or other equity interests
(other than any Convertible Securities) in the Borrower or Holdco
(other than from the issuance of (A) any Permitted High-Yield
Securities which are equity securities to the extent that such Net
Proceeds shall be used to repay the Tranche C Loans as permitted
by Section 2.5(b)(i) hereof, (B) such Capital Stock or other
equity interests to any Shareholder or Affiliate thereof, (C) any
Capital Stock of Holdco issued to existing shareholders of
Westower in connection with the Westower Acquisition, or (D) the
issuance by Holdco of its common stock in connection with a public
offering of its primary shares completed within one (1) year after
the Agreement Date) (each an "Equity Offering"), the Borrower
shall prepay the Senior Loans as follows:
"(i) In the event that the Leverage Ratio on a
pro forma basis after giving effect to any Debt Offering
shall be greater than 4.00 to 1.00, an amount up to one
hundred percent (100%) of the Net Proceeds received by
Holdco with respect to such Debt Offering shall be
applied, on the date of receipt of the Net Proceeds of
such Debt Offering by Holdco, by the Borrower to prepay
the Senior Loans as set forth in Section 2.7(e) hereof, to
the extent
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necessary to cause the Leverage Ratio to be less than or
equal to 4.00 to 1.00 after giving effect to such Debt
Offering.
"(ii) In the event that the Leverage Ratio on a
pro forma basis after giving effect to any Equity Offering
shall be greater than 4.00 to 1.00, an amount up to fifty
percent (50%) of the excess, if any, of (A) the aggregate
amount of Net Proceeds received by the Borrower or Holdco,
as applicable, in respect of Equity Offerings conducted
during the term of this Agreement, over (B) $250,000,000,
shall be applied, on the date of receipt thereof, to
prepay the Senior Loans, as set forth in Section 2.7(e),
to the extent necessary to cause the Leverage Ratio to be
less than or equal to 4.00 to 1.00 after giving effect to
such Equity Offering."
3. Amendments to Article 5.
(a) Section 5.1(c) of the Credit Agreement, Capital
Stock, Corporate Organization and Related Matters, is hereby deleted and the
following substituted in lieu thereof:
"(c) Capital Stock, Corporate Organization and Related
Matters. As of the Agreement Date, after giving effect to the
Nextel Acquisition, the capitalization of Holdco will be as set
forth on Schedule 5.1(c) hereof. Holdco owns all of the issued and
outstanding Capital Stock of the Borrower, and except as set forth
on Schedule 5.1(c), the Borrower owns all of the issued and
outstanding Capital Stock of each of its Subsidiaries and has the
unrestricted right to vote such Capital Stock owned by it. As of
the Westower Acquisition Date, the Borrower will not have any
Subsidiaries other than the Subsidiaries listed on Schedule 5.1(x)
attached hereto. All of the issued and outstanding shares of
Capital Stock of the Borrower and its Subsidiaries have been duly
authorized and validly issued and are fully paid and
nonassessable, and are free and clear of all Liens (except for
Permitted Liens). None of such Capital Stock has been issued in
violation of the Securities Act, or the securities, "Blue Sky" or
other Applicable Laws of any applicable jurisdiction. As of the
Westower Acquisition Date, except as set forth on Schedule 5.1(c),
none of Holdco, the Borrower or any of the Borrower's Subsidiaries
has outstanding any stock or securities convertible into or
exchangeable for any shares of its Capital Stock, nor are there
any preemptive or similar rights to subscribe for or to purchase,
or any other rights to subscribe for or to purchase, or any
options for the purchase of, or any agreements providing for the
issuance (contingent or otherwise) of, or any calls, commitments,
or claims of any character relating to, any of such Capital Stock
or any stock or securities convertible into or exchangeable for
any of such Capital Stock. As of the Westower Acquisition Date,
except as set forth on Schedule 5.1(c), none of Holdco, the
Borrower or any of the Borrower's Subsidiaries is subject to any
obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any shares of its Capital Stock or to register
any shares of its Capital Stock, and there are no agreements
restricting the transfer of any shares of Capital Stock of any of
Holdco, the Borrower or any of the Borrower's Subsidiaries or
restricting the ability
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of any Subsidiary of the Borrower from making distributions,
dividends or other Restricted Payments to the Borrower. Except as
set forth on Schedule 5.1(c), within the five (5) year period
immediately preceding the Agreement Date, neither the Borrower nor
any of its Subsidiaries (other than Westower and its Subsidiaries
existing as of the Westower Acquisition Date) has changed its name
nor has the Borrower or any of its Subsidiaries (other than
Westower and its Subsidiaries existing as of the Westower
Acquisition Date) transacted business under any other name or
trade name."
(b) Section 5.1(h) of the Credit Agreement, Title to
Assets, is hereby deleted and the following substituted in lieu thereof:
"(h) Title to Assets. Holdco, the Borrower and the
Borrower's Subsidiaries each has good and legal title to, or a
valid leasehold interest in, all of its respective Assets, and
none of such Assets is subject to any Liens, except for Permitted
Liens. Except for financing statements evidencing Permitted Liens,
no financing statement under the Uniform Commercial Code as in
effect in any jurisdiction and no other filing which names Holdco,
the Borrower or any of the Borrower's Subsidiaries as debtor, or
which covers or purports to cover any of the Assets of the
Borrower or any of the Borrower's Subsidiaries, is currently
effective and on file in any state or other jurisdiction, and none
of Holdco, the Borrower or any of the Borrower's Subsidiaries has
signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any
such financing statement or filing. As of the Westower Acquisition
Date, except as set forth on Schedule 5.1(h), none of Holdco, the
Borrower or any of the Borrower's Subsidiaries is a party to any
contract, instrument or agreement (including, without limitation,
any of the Necessary Authorizations) restricting the ability of
Holdco, the Borrower or such Subsidiary, as applicable, to enter
into an agreement by which Holdco, the Borrower or such
Subsidiary, as applicable, agrees that it shall not create,
assume, incur or permit to exist or be created, directly or
indirectly, any Lien on its Assets. Tower Sub does not own any
material Assets other than Tower Assets comprising the Nextel
Collateral and Tower Space Lease Agreements with Co-Locators on
Towers comprising the Nextel Collateral, and Holdco does not own
any material Assets other than the Capital Stock of the Borrower
and, prior to consummation of the Westower Acquisition, the
Capital Stock of W Acquisition Corp. and Westower."
(c) Section 5.1(i) of the Credit Agreement,
Litigation, is hereby deleted and the following substituted in lieu thereof:
(i) Litigation. As of the Westower Acquisition Date,
except as set forth on Schedule 5.1(i) attached hereto, there is
no material action, suit, application, complaint, petition,
revocation, proceeding or investigation, at law or in equity, or
any material order, decree or judgment, in effect or pending
against, or, to the best of the Borrower's knowledge, threatened
against Holdco, the Borrower or any of the Borrower's Subsidiaries
or any of their respective properties and Assets (including,
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without limitation, any Necessary Authorization or any Tower
Assets) in any court or before any arbitrator of any kind or
before or by any governmental body (including, without limitation,
the FCC and/or the FAA). No action, suit, proceeding or
investigation, at law or in equity, or any material order, decree
or judgment, in effect or pending against, or, to the best of the
Borrower's knowledge, threatened against Holdco, the Borrower or
any of the Borrower's Subsidiaries or any of their respective
properties and Assets (including, without limitation, any
Necessary Authorization or any Tower Assets) in any court or
before any arbitrator of any kind or before or by any governmental
body (including, without limitation, the FCC and/or the FAA) (i)
calls into question the validity of this Agreement or any of the
other Loan Documents, (ii) if determined adversely to Holdco, the
Borrower or any of the Borrower's Subsidiaries, could reasonably
be expected to have a Materially Adverse Effect, or (iii) could
restrict in any material manner the ownership, operation or
license status of any Material Towers."
(d) Section 5.1(m) of the Credit Agreement, ERISA,
is hereby deleted and the following substituted in lieu thereof:
"(m) ERISA. Each Plan maintained, or contributed to, by
the Borrower or any of its Subsidiaries, or any of their ERISA
Affiliates, as of the Westower Acquisition Date is listed on
Schedule 5.1(m) attached hereto. Each of such Plans is in
compliance in all material respects with their terms, ERISA and
the Code. None of such Plans has a material 'accumulated funding
deficiency' within the meaning of ERISA or the Code. Neither the
Borrower nor any of its Subsidiaries nor any of their respective
ERISA Affiliates has incurred any material liability to the PBGC
(other than the payment of premiums imposed by Title IV of ERISA)
in connection with any such Plan. The assets of each such Plan
which is subject to Title IV of ERISA are sufficient to provide
the benefits under such Plan if such Plan were terminated on the
date hereof. No Reportable Event has occurred with respect to any
such Plan. No party in interest, fiduciary, trustee or
administrator of any such Plan or trust created thereunder has
engaged in a 'prohibited transaction' (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would
subject the Borrower, its Subsidiaries or any of their respective
ERISA Affiliates to a material tax on 'prohibited transactions'
imposed by Section 4975 of the Internal Revenue Code. No party in
interest, fiduciary, trustee or administrator of any such Plan or
trust created thereunder has committed a material breach of its
fiduciary duty or knowingly participated in any violation of ERISA
which would subject the Borrower, its Subsidiaries, or any of
their respective ERISA Affiliates to a material penalty under
Section 502 of ERISA. As of the Agreement Date, none of the
Borrower, its Subsidiaries or any of their respective ERISA
Affiliates is a participant in or obliged to make any payment to a
Multiemployer Plan. As of the Agreement Date, except as required
by Sections 601 through 609 of ERISA, neither the Borrower nor any
of its Subsidiaries has made any oral or written commitments to
provide post-employment health or life insurance coverage with
respect to any former or current employee. The Borrower and its
Subsidiaries and ERISA Affiliates have properly classified
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individuals providing services to the Borrower or any of its
Subsidiaries or ERISA Affiliates as employees or non-employees,
except to the extent that a misclassification would not result in
a Materially Adverse Effect."
(e) Section 5.1(s) of the Credit Agreement,
Agreements with Affiliates and Management Agreements, is hereby deleted and the
following substituted in lieu thereof:
"(s) Agreements with Affiliates and Management Agreements.
As of the Westower Acquisition Date, except as set forth on
Schedule 5.1(s) attached hereto, none of Holdco, the Borrower nor
any of the Borrower's Subsidiaries has (i) any material written
agreements or binding arrangements of any kind with any Affiliate
or (ii) any material management or consulting agreements of any
kind, not entered into in the ordinary course of business."
(f) Section 5.1(u) of the Credit Agreement, Payment
of Wages; Labor Matters, is hereby deleted and the following substituted in lieu
thereof:
"(u) Payment of Wages; Labor Matters. The Borrower and
each of its Subsidiaries are in compliance with the Fair Labor
Standards Act, as amended, in all material respects, and the
Borrower and each of its Subsidiaries have complied in all
material respects with all minimum and overtime wage requirements
applicable to their respective employees. As of the Westower
Acquisition Date, except as disclosed on Schedule 5.1(u): (i) no
labor contract to which the Borrower or any of its Subsidiaries is
a party or is otherwise subject is scheduled to expire during the
term of this Agreement; (ii) neither the Borrower nor any of its
Subsidiaries has, within the two (2) year period immediately
preceding the Agreement Date, taken any action which would have
constituted or resulted in a 'plant closing' or 'mass layoff'
within the meaning of the Federal Worker Adjustment and Retraining
Notification Act of 1988 or any similar applicable federal, state
or local law, and the Borrower does not have any reasonable
expectation that it will incur any material liability under such
Act at any time during the term of this Agreement; (iii) all of
the operations of the Borrower and its Subsidiaries are conducted
in all material respects in compliance with all applicable rules
and regulations promulgated by the Occupational Safety and Health
Administration of the United States Department of Labor; and (iv)
as of the Westower Acquisition Date, (A) neither the Borrower nor
any of its Subsidiaries is a party to any material labor dispute
(other than any immaterial disputes with the Borrower's or such
Subsidiary's employees as individuals and not affecting the
Borrower's or such Subsidiary's relations with any labor group or
its workforce as a whole) and (B) there are no pending or, to the
Borrower's knowledge, threatened strikes or walkouts relating to
any labor contracts to which the Borrower or any of its
Subsidiaries is a party or is otherwise subject. As of the
Westower Acquisition Date, none of the employees of the Borrower
or any of its Subsidiaries is a party to any collective bargaining
agreement with the Borrower or any of its Subsidiaries."
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(g) Section 5.1(x) of the Credit Agreement,
Investments, is hereby deleted and the following substituted in lieu thereof:
"(x) Investments. As of the Westower Acquisition Date,
none of Holdco, the Borrower or any of the Borrower's Subsidiaries
owns any Capital Stock, partnership interests or other securities
of, or equity interests in, or has outstanding loans or advances
to, or guaranties of the obligations of, any Person except as
reflected in the Financial Statements, or disclosed on Schedule
5.1(c) or Schedule 5.1(x) attached hereto."
(h) Section 5.1(y) of the Credit Agreement, Material
Contracts, is hereby deleted and the following substituted in lieu thereof:
"(y) Material Contracts. Schedule 5.1(y) contains a
complete list, as of the Agreement Date, of each contract,
agreement or commitment (the "Material Contracts") to which the
Borrower or any of its Subsidiaries is a party which is material
to the business, financial condition, operations, prospects or
Assets of the Borrower and its Subsidiaries taken as a whole,
other than any Necessary Authorizations set forth on Schedule
5.1(f) attached hereto, and, upon the request of the Arrangers,
the Borrower will provide the Arrangers with a copy of any such
contract or agreement. Schedule 5.1(y) further identifies, as of
the Westower Acquisition Date, each Material Contract which
requires consent to the granting of a Lien in favor of the
Collateral Agent on the rights of the Borrower or any of its
Subsidiaries thereunder."
4. Amendment to Section 6.2. Section 6.2 of the Credit Agreement,
Business; Compliance with Applicable Law, is hereby deleted in its entirety and
the following substituted in lieu thereof:
"Section 6.2 Business; Compliance with Applicable Law. The
Borrower will, and will cause each of its Subsidiaries to, engage
solely in the business of the Tower Operations, the Other
Operations and in related business activities. Holdco will engage
solely in the business of holding the Capital Stock of (a) the
Borrower, and (b) prior to consummation of the Westower
Acquisition, W Acquisition Corp. and Westower. Each of Holdco and
the Borrower will, and will cause each of the Borrower's
Subsidiaries to, comply in all material respects with the
requirements of all Applicable Laws (including, without
limitation, all tower marking and lighting requirements of the FAA
and the FCC)."
5. Amendment to Section 6.9. Section 6.9 of the Credit Agreement,
Use of Proceeds, is hereby deleted in its entirety and the following substituted
in lieu thereof:
"Section 6.9 Use of Proceeds. The Borrower will use
the aggregate proceeds of all Advances (a) to finance the Nextel
Acquisition, (b) to finance the Westower Acquisition (including,
without limitation, the distribution of funds to
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Holdco to permit Holdco to repay any existing Indebtedness of
Westower), (c) to finance the NTA Investment, (d) to provide
funding for the construction/development, build-out and
Acquisition of Towers as permitted hereunder, (e) for general
corporate purposes (including, without limitation, fees and
expenses relating to the Nextel Acquisition, the Westower
Acquisition, the NTA Investment, and the transactions contemplated
by this Agreement and the other Loan Documents), and (f) for
working capital and other general corporate purposes. A portion of
each Advance of the Tranche C Loans in an aggregate amount
sufficient to make interest payments on such Advance during the
Tranche C Pre-Fund Period shall be funded on the date of such
Advance of the Tranche C Loans to the Tranche C Pre-Funded
Interest Account and made solely available for payment of interest
charges on the Tranche C Loans, and principal and interest
repayment upon the Final Maturity Date or in the event of
acceleration of the Tranche C Obligations pursuant to Section
10.3(b) hereof. No proceeds of Advances hereunder shall be used
for the purchase or carrying or the extension of credit for the
purpose of purchasing or carrying any margin stock within the
meaning of Regulations U and X of the Board of Governors of the
Federal Reserve System."
6. Amendment to Section 6.16. Section 6.16 of the Credit
Agreement, Covenants Regarding Formation of Subsidiaries and the Making of
Investments and Acquisitions, is hereby deleted and the following substituted in
lieu thereof:
"Section 6.16 Covenants Regarding Formation of
Subsidiaries and the Making of Investments and Acquisitions. At
the time of any Acquisition by the Borrower or any of its
Subsidiaries, or the formation of any new Subsidiary of the
Borrower or of any of its Subsidiaries, the Borrower will, and
will cause its Subsidiaries, as applicable, to in the case of the
formation or Acquisition of a new Subsidiary, (a) provide to the
Collateral Agent a duly executed supplement to the Subsidiary
Security Agreement for such new Subsidiary (other than any Foreign
Westower Subsidiary), together with appropriate UCC-1 financing
statements, as well as a duly executed supplement to the
Subsidiary Guaranty for such new Subsidiary (other than any
Foreign Westower Subsidiary), which shall constitute both Security
Documents and Loan Documents for purposes of this Agreement, as
well as a loan certificate for such new Subsidiary, substantially
in the form of Exhibit Z attached hereto, together with
appropriate attachments thereto; (b) pledge to the Collateral
Agent all of the Capital Stock (or other instruments or securities
evidencing ownership) of such Subsidiary or Person (other than the
Foreign Westower Subsidiaries, in which case the pledge shall be
of sixty-five percent (65%) (or in the case of Westower Highlight
Do Brazil, sixty percent (60%)) of the Capital Stock of each such
Subsidiary) which is acquired or formed, beneficially owned by the
Borrower or any of the Borrower's Subsidiaries, as the case may
be, as additional Collateral for the Senior Obligations to be held
by the Collateral Agent in accordance with the terms of the
Borrower Pledge Agreement or the Subsidiary Pledge Agreement, and
execute and deliver to the Collateral Agent all such documentation
for such pledge (including, without limitation, a supplement to
the Subsidiary Pledge
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Agreement, original stock certificates and duly executed stock
powers) as, in the reasonable opinion of the Collateral Agent, is
appropriate; and (c) provide all other documentation, including,
without limitation, a Trademark Security Agreement or any other
security agreement covering any additional intellectual property
obtained by the Borrower or such Subsidiary (other than any
Foreign Westower Subsidiary), and one or more opinions of counsel
satisfactory to the Collateral Agent which in the reasonable
opinion of the Collateral Agent is appropriate with respect to
such Acquisition or the formation of such new Subsidiary.
Investments made by the Borrower or any of its Subsidiaries after
the Agreement Date shall also be treated as additional Collateral
and shall be subject to the provisions of appropriate Security
Documents. Any document, agreement or instrument executed or
issued pursuant to this Section 6.16 shall be a 'Loan Document'
for purposes of this Agreement. Notwithstanding anything to the
contrary contained herein, upon the reasonable request of the
Borrower, Collateral Agent may, in its sole discretion without
consultation with the Majority Lenders, release any or all the
Collateral pledged to it in connection with the NTA Investment to
the extent that such Collateral does not represent a substantial
portion of the Collateral for the Senior Loans taken as a whole."
7. Amendment to Section 7.4. Section 7.4 of the Credit Agreement,
Performance Certificates, is hereby deleted in its entirety and the following
substituted in lieu thereof:
"Section 7.4 Performance Certificates. At the time the
financial statements are furnished pursuant to Section 7.2 hereof,
a Performance Certificate:
"(a) setting forth as at the end of such fiscal quarter,
the arithmetical calculations required to establish (i) the
Applicable Margin, and (ii) whether the Borrower was in compliance
with the requirements of the Financial Covenants;
"(b) setting forth on a consolidated basis for the
Borrower and its Subsidiaries, for each such fiscal quarter, a
summary in the form of Schedule 3 to the Performance Certificate
of (i) the number and type of Towers built, acquired or sold by
the Borrower or any of its Subsidiaries during such period, (ii)
the location by state and county of any new Tower Sites not
previously reported under this Section 7.4(b), (iii) the dates of
final termination or expiration of all Tower Site Lease Agreements
and Tower Space Lease Agreements occurring during the quarter then
ended and for the immediately following quarter, (iv) a list of
all anchor tenants which are located on at least five (5) Towers
and the total number of Towers on which each such anchor tenant is
located, (v) a list of all Co-Locators which are located on at
least five (5) Towers, including the total number of Towers on
which each such Co-Locator is located and the percentage of all
Towers on which such Co-Locator is located, (vi) capacity for
additional tenants per Tower with respect to the Tower Sites of
the Borrower and its Subsidiaries as of the end of such fiscal
quarter, (vii) the Co-Location Percentage as at the end of such
quarter, and (viii) with respect to any Tower Sites leased by the
Borrower or any of its Subsidiaries which were acquired or
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built during such quarter, whether the consent of the landlord of
such Tower Sites is required for an assignment of the Tower Site
Lease Agreement with respect thereto;
"(c) with respect to the fourth (4th) quarter of any
fiscal year only, an updated list of all of the Tower Site Lease
Agreements and Tower Space Lease Agreements of the Borrower and
its Subsidiaries as of the end of such fiscal quarter; and
"(d) stating that, to the best of his or her knowledge, no
Default or Event of Default has occurred as at the end of such
period, or, if a Default or an Event of Default has occurred,
disclosing each such Default or Event of Default and its nature,
when it occurred, whether it is continuing and the steps being
taken by the Borrower with respect to such Default or Event of
Default."
8. Amendment to Section 7.6. Section 7.6 of the Credit Agreement,
Notice of Litigation and Other Matters, is hereby modified and amended by
deleting the existing subsection (e) and by substituting the following in lieu
thereof:
"(e) (i) the maintenance of, or contribution to, by the
Borrower or any of its Subsidiaries, or any of their ERISA
Affiliates, in any Plan not listed on Schedule 5.1(m) attached
hereto, or (ii) the occurrence of any Reportable Event or a
material non-exempt 'prohibited transaction' (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) with
respect to any Plan of the Borrower or any of its Subsidiaries or
the institution or threatened institution by PBGC of proceedings
under ERISA to terminate or to partially terminate any such Plan
or the commencement or threatened commencement of any litigation
regarding any such Plan, other than litigation involving a routine
claim for benefits;"
9. Amendments to Section 8.1.
(a) Section 8.1 of the Credit Agreement,
Indebtedness, is hereby modified and amended by deleting existing subsection (c)
and by substituting the following in lieu thereof:
"(c) Capitalized Lease Obligations of the Borrower not to
exceed the aggregate principal amount of $5,000,000 at any one
time outstanding over the remainder of the term of such
obligations;"
(b) Section 8.1 of the Credit Agreement,
Indebtedness, is hereby further modified and amended by deleting existing
subsection (j) and by substituting the following in lieu thereof:
"(j) Indebtedness of the Borrower in respect of
conditional sale, rental or purchase money obligations in an
aggregate amount not to exceed $5,000,000 at any one time
outstanding;"
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10. Amendment to Section 8.4. Section 8.4 of the Credit Agreement,
Amendment and Waiver, is hereby deleted in its entirety and the following
substituted in lieu thereof:
"Section 8.4 Amendment and Waiver. Neither Holdco nor the
Borrower shall, and the Borrower shall cause each of its
Subsidiaries not to, without the prior written consent of the
Arrangers, enter into any amendment of, or agree to or accept any
waiver of, which would materially adversely affect the rights of
the Borrower and the Credit Parties, under any of them, of any of
the provisions of, (a) its organizational documents, including,
without limitation, its certificate or articles of incorporation
(other than any increase in the number of authorized shares) and
by-laws, (b) the Nextel Acquisition Documents, (c) the Indentures,
(d) the Holdco Equity Documents, (e) the Westower Acquisition
Agreement, and (f) the NTA Investment Documents."
11. Amendments to Section 8.5.
(a) Section 8.5 of the Credit Agreement, Liquidation;
Merger; Acquisition or Disposition of Assets, is hereby modified and amended by
deleting existing subsection (vii) and substituting the following in lieu
thereof:
"(vii) subject to compliance with Section 6.10 and Section
6.16 hereof, the Borrower and its Subsidiaries (other than Tower
Sub) may make Acquisitions, and Investments (including the
acquisition of Capital Stock or other equity interests in Persons
engaged in businesses similar to the Tower Operations) and form
Subsidiaries with respect thereto, subject to the following
conditions:
"(A) no Default or Event of Default shall
then exist before or after giving effect to such
Acquisition or Investment;
"(B) the aggregate Purchase Price for Tower
Assets acquired pursuant to this clause (vii) (other than
the Future Nextel Towers), (I) during any twelve (12)
month period, shall not exceed $50,000,000, and (II)
during the period from the Agreement Date through the
Tranche B Maturity Date, shall not exceed $100,000,000;
"(C) with respect to Acquisitions structured as
Tower Asset exchanges or swaps, the following restrictions
shall apply: (x) the cash outlay by the Borrower for such
Acquisition must be within the dollar limitations set
forth in the preceding clause (B); (y) the Annualized
EBITDA attributable to the Tower Assets being acquired
must be substantially similar to or greater than the
Annualized EBITDA of the Tower Assets being exchanged or
swapped; and (z) if the exchange involves more than
twenty-five (25) Towers, the Towers acquired in such
transaction must have as an anchor tenant a Nextel Tenant
or another tenant reasonably acceptable to the Majority
Lenders.
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"(D) the Borrower shall provide to the Arrangers
and the Lenders calculations demonstrating pro forma
compliance with the Financial Covenants after giving
effect to such Acquisition; and
"(E) with respect to any Acquisition having an
aggregate Purchase Price (with respect to a single
transaction or a series of related transactions) in excess
of $20,000,000, the Borrower shall provide to the
Arrangers and the Lenders revised Projections assuming
consummation of the Acquisition and demonstrating pro
forma compliance with the Financial Covenants through the
Tranche B Maturity Date;"
(b) Section 8.5 of the Credit Agreement, Liquidation;
Merger; Acquisition or Disposition of Assets, is hereby further modified and
amended by adding the following new subsections (x) and (xi) at the end thereof:
"(x) Holdco and the Borrower may consummate the
Westower Acquisition; and
"(xi) so long as no Default or Event of Default then
exists or would be caused thereby, the Borrower may consummate the
NTA Investment; provided, however, that with respect to the
exercise by the Borrower of its options to acquire additional
equity interests in the NTA Joint Venture, the Borrower may not
acquire such additional equity interests without the prior written
consent of the Majority Lenders."
12. Amendment to Section 8.6. Section 8.6 of the Credit Agreement,
Limitation on Guaranties, is hereby deleted in its entirety and the following
substituted in lieu thereof:
"Section 8.6 Limitation on Guaranties. Neither Holdco nor
the Borrower shall, and the Borrower shall cause each of its
Subsidiaries not to, at any time Guaranty, assume, be obligated
with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than (a) under any of the
Loan Documents or as permitted under Section 8.1 hereof, (b) a
guaranty by endorsement of negotiable instruments for collection
in the ordinary course of business, (c) contingent obligations
incurred in the ordinary course of business with respect to surety
and appeal bonds, performance and return-of-money bonds and other
similar obligations, and (d) a guaranty by Holdco, the Borrower or
any of its Subsidiaries (other than Tower Sub) of the performance
obligations of the Borrower or any of its Subsidiaries."
13. Amendment to Section 8.7. Section 8.7 of the Credit Agreement,
Restricted Payments and Purchases, is hereby deleted in its entirety and the
following substituted in lieu thereof:
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"Section 8.7 Restricted Payments and Purchases. Neither
Holdco nor the Borrower shall, and the Borrower shall cause each
of its Subsidiaries not to, directly or indirectly declare or make
any Restricted Payment or Restricted Purchase, except that, so
long as no Default or Event of Default then exists or would result
therefrom, the Borrower may make Restricted Payments to Holdco to
enable Holdco to make, and Holdco may make, (a) (i) interest
payments on the Holdco 2008 Notes and on the Holdco 2009 Notes, or
(ii) interest or dividend payments, as applicable, on Permitted
High-Yield Securities issued on or before the Agreement Date, in
each case in the case of clauses (i) and (ii), following
expiration of the Five Year PIK Period or from a Pre-Funded
Interest Account, (b) dividend or interest payments, as
applicable, on Permitted High-Yield Securities issued after the
Agreement Date, following expiration of the Five Year PIK Period,
or from a Pre-Funded Interest Account, at any time after the
Leverage Ratio shall have been less than 4.0 to 1.0 for two (2)
consecutive fiscal quarters, (c) payments when due of corporate
franchise fees and taxes owed by Holdco that are required to be
paid in cash, (d) payments, when due, of legal and accounting fees
and expenses actually incurred by Holdco that are required to be
paid in cash, and payments for costs incurred to comply with
Holdco's reporting obligations under federal or state laws,
including, without limitation, reports filed with respect to the
Securities Act, the Exchange Act or the respective rules and
regulations promulgated thereunder, (e) payments of 'Additional
Interest' (as that term is defined in the Registration Rights
Agreements entered into in connection with the Holdco 2008 Notes
and the Holdco 2009 Notes), and (f) on the Westower Acquisition
Date, repayment of any existing Indebtedness of Westower in an
aggregate amount not to exceed $70,000,000."
14. Amendment to Section 8.9. Section 8.9 of the Credit Agreement,
Corporate Name; Corporate Structure; Business, is hereby deleted in its entirety
and the following substituted in lieu thereof:
"Section 8.9 Corporate Name; Corporate Structure;
Business. Neither Holdco nor the Borrower shall, and the Borrower
shall cause each of its Subsidiaries not to, (1) change its
corporate name or corporate structure without giving the
Collateral Agent thirty (30) days' prior written notice of its
intention to do so and complying with all reasonable requirements
of the Collateral Agent in regard thereto, or (b) with respect to
the Borrower and its Subsidiaries, engage in any businesses other
than the Tower Operations and the Other Operations and activities
related or incident thereto, and with respect to Holdco, engage in
any business other than that of holding the Capital Stock of the
Borrower, or prior to consummation of the Westower Acquisition,
the Capital Stock of W Acquisition Corp. or Westower, or in each
case, make any material change in any of their respective business
objectives, purposes and operations."
15. Amendment to Section 13.18. Section 13.18 of the Credit
Agreement, Confidentiality, is hereby deleted in its entirety and the following
substituted in lieu thereof:
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"Section 13.18 Confidentiality. All agreements,
instruments, documents and other information received pursuant to
this Agreement or any other Loan Document by the Credit Parties
shall be held in confidence by the Credit Parties, except for
disclosures made (a) in connection with assignments of or
participations in the Loans made pursuant to Section 13.5 hereof
(provided that such assignees or participants shall agree in
writing to keep such information confidential as provided herein),
(b) as otherwise required to be disclosed by banking regulations,
process of law or other Applicable Law, or to government
regulators, (c) of information received by a Credit Party without
restriction as to its disclosure or use from a Person who, to such
Credit Party's knowledge or reasonable belief, was not prohibited
from disclosing it by any duty of confidentiality, (d) in
connection with litigation arising from this Agreement or any
other Loan Document to which a Credit Party is a party, (v) of
information which is or has become public (other than through
unauthorized disclosure by any Credit Party), (vi) to the
attorneys, accountants, and other expert consultants (including
rating agencies) for any Credit Party (who shall be requested to
similarly hold such information in confidence), (vii) to any
direct or indirect contractual counterparty of a Lender in
connection with a swap agreement or such contractual
counterparty's professional advisor so long as such contractual
counterparty or professional advisor, as the case may be, agrees
in writing to be bound by the provisions of this Section 13.18,
(viii) to the National Association of Insurance Commissioners or
any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's
investment portfolio in connection with ratings issued with
respect to such Lender, or (ix) as otherwise permitted hereunder."
16. Amendments to Schedules to the Credit Agreement. The following
schedules to the Credit Agreement shall be deemed amended as of the Westower
Acquisition Date:
(a) Schedule 5.1(c) to the Credit Agreement,
Capitalization, is hereby modified and amended by deleting the existing schedule
in its entirety and by substituting Schedule 5.1(c) attached hereto in lieu
thereof.
(b) Schedule 5.1(i) to the Credit Agreement,
Litigation, is hereby modified and amended by deleting the existing schedule in
its entirety and by substituting Schedule 5.1(i) attached hereto in lieu
thereof.
(c) Schedule 5.1(m) to the Credit Agreement, ERISA,
is hereby modified and amended by deleting the existing schedule in its entirety
and by substituting Schedule 5.1(m) attached hereto in lieu thereof.
(d) Schedule 5.1(s) to the Credit Agreement,
Agreements with Affiliates, is hereby modified and amended by deleting the
existing schedule in its entirety and by substituting Schedule 5.1(s) attached
hereto in lieu thereof.
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(e) Schedule 5.1(x) to the Credit Agreement,
Investments, is hereby modified and amended by deleting the existing schedule in
its entirety and by substituting Schedule 5.1(x) attached hereto in lieu
thereof.
17. No Other Amendments, Waivers or Consents. Except for the
amendments set forth above, the text of the Credit Agreement and the other Loan
Documents shall remain unchanged and in full force and effect, and the
Arrangers, the Syndication Agent, the Administrative Agent, the Collateral Agent
and the Credit Parties hereby reserve the right to require strict compliance
with the terms of the Credit Agreement and the other Loan Documents, including,
without limitation, all terms applicable to Subsidiaries of the Borrower, in the
future.
18. Acceptance of Westower Anchor Tenants. The Arrangers hereby
acknowledge and agree that each anchor tenant designated with respect to a New
Tower acquired in connection with the Westower Acquisition as set forth on
Exhibit A attached hereto shall be deemed to be an acceptable anchor tenant with
respect to such New Tower for purposes of determining the Borrowing Base Amount.
19. Conditions Subsequent. As a condition subsequent to the
amendments and consents set forth in this Amendment, the Borrower shall perform
or cause to be performed the following (the failure by the Borrower to so
perform or cause to be performed for any reason (other than (x) with respect to
the conditions set forth in clause (a) below, the fact that the Westower
Acquisition was not ever consummated, or (y) with respect to the conditions set
forth in clause (b) below, the fact that the NTA Investment was not ever made)
constituting an Event of Default under the Credit Agreement):
(a) Westower Acquisition.
(i) Conditions Precedent to Westower Acquisition.
Promptly after the same shall become available to the Borrower,
and in any event at least one (1) Business Day prior to the
Westower Acquisition Date, the Borrower shall deliver to the
Arrangers (A) the unaudited financial statements of Westower for
the quarter ended March 31, 1999, which shall present fairly, in
all material respects, in accordance with GAAP, the financial
position of Westower as at the end of such quarter and the results
of operations for such quarter, and for the elapsed portion of the
year ended with the last day of such quarter, subject only to
normal year-end adjustments, (B) a copy of the Merger Agreement,
together with all exhibits and schedules thereto, and (C) a
schedule setting forth, with respect to each Tower owned, operated
or managed by Westower, (I) the location and type of such Tower,
(II) whether the applicable Tower Site is owned or leased by
Westower, and if leased, the amount of the monthly ground rent and
the expiration date of the ground lease, and (III) the names of
each anchor tenant and each co-locator, and the amount of monthly
license fees payable, with respect to such Tower.
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(ii) Westower Acquisition Collateral. On the
Westower Acquisition Date, the Borrower shall execute and deliver,
or as applicable, cause Westower to execute and deliver, to the
Collateral Agent (i) a Supplement to Subsidiary Security Agreement
executed by Westower and each of its Subsidiaries (other than the
Foreign Westower Subsidiaries), together with all appropriate
UCC-1 financing statements requested by the Collateral Agent, (ii)
a Supplement to Subsidiary Guaranty executed by Westower and each
of its Subsidiaries (other than the Foreign Westower
Subsidiaries), (iii) an amendment to the Borrower Pledge
Agreement, in form and substance reasonably satisfactory to the
Arrangers and their counsel, executed by the Borrower with respect
to the Capital Stock owned by it in Westower, and a Supplement to
Subsidiary Pledge Agreement executed by Westower and its
Subsidiaries with respect to all of the Capital Stock owned by
each of them in their respective Subsidiaries (other than the
Foreign Westower Subsidiaries, in which case the pledge shall be
with respect to sixty-five percent (65%) (or in the case of
Westower Highlight Do Brazil, sixty percent (60%)) of the Capital
Stock owned by Westower or its Subsidiaries, as the case may be),
together with original stock certificates and corresponding stock
powers duly executed in blank, (iv) an amendment and joinder to
the Trademark Security Agreement, in form and substance reasonably
satisfactory to the Arrangers and their counsel, executed by
Westower and each of its Subsidiaries (other than the Foreign
Westower Subsidiaries) owning any trademark registrations or
applications, (v) an opinion of counsel to Holdco and the
Borrower, in form and substance reasonably satisfactory to the
Arrangers and their counsel, regarding the Westower Acquisition
and the Loan Documents delivered to the Collateral Agent in
connection therewith, and (vi) a loan certificate from Westower
and each of its Subsidiaries, together with all appropriate
attachments thereto.
(b) NTA Investment.
(i) Definitive Documentation. Promptly upon the
closing of the NTA Investment, the Borrower shall deliver to the
Arrangers a full set of copies of the duly executed documents
executed in connection with the NTA Investment, including, without
limitation, copies of other consents required to be obtained in
connection with the NTA Investment and copies of any documentation
evidencing the credit facility extended to Newco by the Borrower.
(ii) Assignment of Equity Interests.
Simultaneously with the closing of the NTA Investment, the
Borrower shall pledge to the Collateral Agent all of the equity
interests of Newco acquired by the Borrower in connection with the
NTA Investment pursuant to a pledge agreement substantially
identical to the Borrower Pledge Agreement, and shall immediately
deliver all appropriate Uniform Commercial Code financing
statements required to perfect such pledge to the Collateral
Agent. The equity interests of Newco acquired by the Borrower
shall be free and clear of all Liens other than those in favor of
the Collateral Agent.
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(iii) Assignment of Purchase Documentation and
Notes Receivable. Simultaneously with the closing of the NTA
Investment, the Borrower shall (i) execute and deliver to the
Collateral Agent a duly executed assignment all of the Borrower's
contract rights arising in respect of the documents evidencing the
NTA Investment, together with a consent to such assignment
executed by each of the other parties to the NTA Investment, and
(ii) pursuant to the Security Agreement, deliver to the Collateral
Agent all of the original notes receivable issued by Newco in
favor of the Borrower in connection with the NTA Investment
endorsed in blank.
(iv) Copies of Reports and other Information.
Promptly upon the Borrower's receipt thereof (and, in any event
within three (3) Business Days of the Borrower's receipt thereof),
the Borrower shall deliver to the Arrangers copies of all reports
and financial information provided to the Borrower by or with
respect to Newco.
20. Conditions to Effectiveness. This Amendment shall be effective
as of the date first written above (the "Effective Date") upon the following:
(a) the Administrative Agent's receipt of a
counterpart hereof duly executed by the Borrower and Holdco, and
by the Majority Lenders;
(b) with respect to the NTA Investment, the Arrangers'
receipt of an updated business plan and updated Projections for
the Borrower demonstrating the Borrower's pro forma compliance
with the Financial Covenants after giving effect to the NTA
Investment;
(c) with respect to the Westower Acquisition, the
Arrangers' receipt of an updated business plan and updated
Projections for the Borrower demonstrating the Borrower's pro
forma compliance with the Financial Covenants after giving effect
to the Westower Acquisition; and
(d) the representations and warranties of Holdco and the
Borrower set forth in the Credit Agreement and this Amendment,
other than those that are expressly made as of a specific date,
are true and correct in all material respects with the same effect
as though such representations and warranties had been made on and
as of the Effective Date.
21. Representations and Warranties. Each of the Borrower and
Holdco, for itself and on behalf of each of its Subsidiaries, agrees, represents
and warrants in favor of the Arrangers, the Syndication Agent, the
Administrative Agent, the Collateral Agent and the Credit Parties that:
(a) This Amendment has been executed and delivered by duly
authorized representatives of the Borrower and Holdco, and the
Credit Agreement, as modified
20
<PAGE>
and amended by this Amendment, constitutes a legal, valid and
binding obligation of the Borrower and Holdco and is enforceable
against the Borrower and Holdco in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally and by the application of general equitable principles;
(b) Before and after giving effect to this Amendment, no
Default or Event of Default with respect to the Borrower or Holdco
has occurred and is continuing;
(c) As of the date hereof and after giving effect to the
Westower Acquisition, (i) the property of the Borrower, at a fair
valuation on a going concern basis, will exceed its debt; (ii) the
capital of the Borrower will not be unreasonably small to conduct
its business; and (iii) the Borrower will not have incurred debts,
or have intended to incur debts, beyond its ability to pay such
debts as they mature;
(d) No event contemplated in connection with the Westower
Acquisition or the NTA Investment shall occur, which has not been
consented to or waived, the occurrence of which constitutes, or
with the passage of time or giving of notice or both would
constitute, a material default by Holdco, the Borrower or any of
their respective Subsidiaries under any material indenture,
agreement or other instrument, including, without limitation, the
material Necessary Authorizations and the Indentures, or any
judgment, decree or order, to which Holdco, the Borrower or any of
their respective Subsidiaries is a party or by which Holdco, the
Borrower or any of their respective Subsidiaries or any of their
respective properties may be bound or affected; and
(e) All of the representations and warranties of Holdco
and the Borrower contained in the Credit Agreement (other than
representations and warranties that relate solely to a specified
date) continue to be true and correct in all material respects as
of the date hereof as though made on and as of such date.
22. Effect on the Credit Agreement. Except as specifically
provided herein, the Credit Agreement shall remain in full force and effect, and
is hereby ratified, reaffirmed and confirmed. This Amendment shall be deemed to
be a Loan Document for all purposes.
23. Counterparts. This Amendment may be executed in any number of
separate counterparts and by the different parties hereto on separate
counterparts, each of which shall be deemed an original and all of which, taken
together, shall be deemed to constitute one and the same instrument. In proving
this Amendment in any judicial proceedings, it shall not be necessary to produce
or account for more than one such counterpart signed by the party against whom
such enforcement is sought. Any signatures delivered by a party by facsimile
transmission shall be deemed an original signature hereto.
21
<PAGE>
24. Law of Contract. THIS CONSENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
22
<PAGE>
IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first written above.
BORROWER: SPECTRASITE COMMUNICATIONS, INC.
By: /s/ David P. Tomick
Name: David P. Tomick
Title: Executive Vice President, Chief
Financial Officer and Secretary
Attest: /s/ Steven C. Lilly
Name: Steven C. Lilly
Title: Vice President
HOLDCO: SPECTRASITE HOLDINGS, INC.
By: /s/ David P. Tomick
Name: David P. Tomick
Title: Executive Vice President, Chief
Financial Officer and Secretary
Attest: /s/ Steven C. Lilly
Name: Steven C. Lilly
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
ADMINISTRATIVE
AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Deborah D. Strek
Name: Deborah D. Strek
Title: Managing Director, CIBC World
Markets Corp., as Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
ARRANGERS: CIBC WORLD MARKETS CORP.
(f/k/a CIBC Oppenheimer Corp.)
By: /s/ Deborah D. Strek
Name: Deborah D. Strek
Title: Managing Director
CREDIT SUISSE FIRST BOSTON
By: /s/ Kristin Lepri
Name: Kristin Lepri
Title: Associate
By: /s/ Bill O'Daly
Name: Bill O'Daly
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
COLLATERAL AGENT: CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Deborah D. Strek
Name: Deborah D. Strek
Title: Managing Director, CIBC World
Markets Corp., as Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
SYNDICATION AGENT: CREDIT SUISSE FIRST BOSTON
By: /s/ Kristin Lepri
Name: Kristin Lepri
Title: Associate
By: /s/ Bill O'Daly
Name: Bill O'Daly
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
MANAGING AGENTS: BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Karen Klapper
Name: Karen Klapper
Title: Director
THE BANK OF NOVA SCOTIA
By: /s/ Vincent J. Fitzgerald, Jr.
Name: Vincent J. Fitzgerald, Jr.
Title: Authorized Signatory
BANKBOSTON, N.A.
By: /s/ Lenny Mason
Name: Lenny Mason
Title: Director
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Brian E. Haughney
Name: Brian E. Haughney
Title: Assistant Vice President
By: /s/ Patrick A. Keleher
Name: Patrick A. Keleher
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Sheila M. Conley
Name: Sheila M. Conley
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Stender E. Sweeney
Name: Stender E. Sweeney
Title: Assistant Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
CO-AGENT: CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Mark A. Campellone
Name: Mark A. Campellone
Title: First Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
LENDERS: CIBC INC.
By: /s/ Deborah D. Strek
Name: Deborah D. Strek
Title: Managing Director, CIBC World
Markets Corp., as Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
CREDIT SUISSE FIRST BOSTON
By: /s/ Kristin Lepri
Name: Kristin Lepri
Title: Associate
By: /s/ Bill O'Daly
Name: Bill O'Daly
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ Karen Klapper
Name: Karen Klapper
Title: Director
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
THE BANK OF NOVA SCOTIA
By: /s/ Vincent J. Fitzgerald, Jr.
Name: Vincent J. Fitzgerald, Jr.
Title: Authorized Signatory
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
BANKBOSTON, N.A.
By: /s/ Lenny Mason
Name: Lenny Mason
Title: Director
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By: /s/ Brian E. Haughney
Name: Brian E. Haughney
Title: Assistant Vice President
By: /s/ Patrick A. Keleher
Name: Patrick A. Keleher
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
TORONTO DOMINION (TEXAS), INC.
By: /s/ Sheila M. Conley
Name: Sheila M. Conley
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Stender E. Sweeney
Name: Stender E. Sweeney
Title: Assistant Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Mark A. Campellone
Name: Mark A. Campellone
Title: First Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
THE BANK OF NEW YORK
By: /s/ Brendan T. Nedzi
Name: Brenda T. Nedzi
Title: Senior Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
CAISSE DE DEPOT ET PLACEMENT DU QUEBEC
By: /s/ Louis Lavoie
Name: Louis Lavoie
Title: Manager
By: /s/ Lucie Rousseau
Name: Lucie Rousseau
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Deborah D. Strek
Name: Deborah D. Strek
Title: Managing Director, CIBC World
Markets Corp., as Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:
Name:
Title:
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
KZH CYPRESSTREE-1 LLC
By: /s/ Peter Chin
Name: Peter Chin
Title: Authorized Agent
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
HELLER FINANCIAL, INC.
By: /s/ Scott Ziemke
Name: Scott Ziemke
Title: Assistant Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC.
By: /s/ Joseph Matteo
Name: Joseph Matteo
Title: Authorized Signatory
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
PPM AMERICA, INC., as attorney in fact,
on behalf of
Jackson National Life Insurance Company
By: /s/ John Walding
Name: John Walding
Title: Managing Director
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
J.H. WHITNEY MARKET VALUE FUND, L.P.
By: J.H. Whitney Value GP, Ltd.,
its General Partner
By: /s/ Daniel J. O'Brien
Name: Daniel J. O'Brien
Title: Managing Member
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
J.H. WHITNEY MEZZANINE FUND, L.P.
By: /s/ Daniel J. O'Brien
By: /s/ Daniel J. O'Brien
Name: Daniel J. O'Brien
Title: Managing Member
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
BANK OF AMERICA, N.A.
By: /s/ Edward A. Hamilton
Name: Edward A. Hamilton
Title: Managing Director
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
DEBT STRATEGIES FUND II, INC.
By: /s/ Joseph Matteo
Name: Joseph Matteo
Title: Authorized Signatory
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
DEBT STRATEGIES FUND III, INC.
By: /s/ Joseph Matteo
Name: Joseph Matteo
Title: Authorized Signatory
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
<PAGE>
VAN KAMPEN SENIOR INCOME TRUST
By: /s/ D. D. Pierce
Name: D. D. Pierce
Title: Vice President
FIRST AMENDMENT (SPECTRASITE COMMUNICATIONS, INC.)
Exhibit 99.1
For Immediate Release
SpectraSite HOLDINGS completes acquisition of WESTOWER
Cary, NC., September 2, 1999--SpectraSite Holdings, Inc. (Nasdaq: SITE)
today announced that it has completed the acquisition of Vancouver, WA-based
Westower Corp. (Amex: WTW), a leading wireless communications tower development
and construction firm.
The transaction, which was approved today by the Westower shareholders, was
accounted for as a purchase in which 1.81 shares of SpectraSite common stock
were exchanged for each outstanding share of Westower stock. The merger
agreement was announced on May 17, 1999.
The combined company will be known as SpectraSite Holdings, Inc., and will trade
on Nasdaq under the symbol "SITE" beginning September 3, 1999.
SpectraSite is a leader in the tower industry, with a nationwide portfolio of
approximately 2,400 towers, 1,200 employees, and annual revenues of
approximately $175 million.
"We're pleased to announce the completion of the acquisition of Westower," said
Stephen Clark, CEO of SpectraSite. "This merger represents the continuation of
our strategy to expand our tower inventory, operational capabilities and
geographic reach. Combining the capabilities of SpectraSite and Westower
maximizes our ability to complete systems development on behalf of carriers with
increased speed and quality."
Morgan Stanley Dean Witter, Goldman Sachs and Credit Suisse First Boston have
agreed to serve as market makers.
About SpectraSite Communications Inc.
SpectraSite Communications Inc. (www.spectrasite.com), based in Cary, NC, is a
leading owner and operator of communications towers for the wireless
telecommunications industry. SpectraSite owns nearly 2,400 towers in 45 of the
top 50 population centers in the United States, with clusters of towers in major
markets including Los Angeles, Chicago, San Francisco, Detroit, Atlanta, Dallas,
Boston, Cleveland, St. Louis, Seattle, Tampa, Charlotte, Norfolk and Nashville.
SpectraSite has regional offices in the New York, Atlanta, Chicago and San
Francisco areas, from which it offers comprehensive turnkey services, including
project management, site acquisition services, construction and design,
build-to-suit, purchase/leaseback, tower leasing, and tower management and
maintenance services to facilitate wireless systems development.
About Westower Corporation
Westower Corporation (www.westower.com), based in Vancouver, WA, is a leading
integrated tower company that provides complete tower services. The company
designs, builds, engineers and maintains, as well as owns and operates, towers
for sending and receiving microwave, cellular, PCS, paging and specialized
mobile radio technologies for broadcast, telephone and utility companies in the
United States, Canada and Brazil.
This press release contains "forward-looking statements" concerning future
expectations, plans or strategies that involve a number of risks and
uncertainties. The Company wishes to caution readers that certain factors may
have affected the Company's actual results and could cause results for
subsequent periods to differ materially from those expressed in any
forward-looking statement made by or on behalf of the Company. Such factors
include, but are not limited to (i) substantial capital requirements and
leverage principally as a consequence of its ongoing acquisitions and
construction activities, (ii) dependence on demand for wireless communications,
(iii) the success of the Company's tower construction program and (iv) the
successful operational integration of the Company's business acquisitions. The
Company undertakes no obligation to update forward-looking statements to reflect
subsequently occurring events or circumstances.
###
<PAGE>
CONTACT:
SpectraSite- Investor Relations SpectraSite- Media Relations
Dave Tomick Noreen Allen
919-468-0112 610-992-0889
[email protected] [email protected]
Westower-Investor Relations Westower-Media Relations
Peter Lucas Jeffrey Goldberger
604-576-4755 212-888-0044
[email protected] [email protected]
Exhibit 99.2
For Immediate Release
CONTACT:
SpectraSite - Investor Relations SpectraSite - Media Relations
Dave Tomick Noreen Allen
919-468-0112 610-992-0889
[email protected] [email protected]
SPECTRASITE HOLDINGS COMPLETES EXCHANGE OFFERS
Cary, N.C., September 15, 1999 - SpectraSite Holdings, Inc. (Nasdaq: SITE) today
announced the consummation of its exchange offer for all of its outstanding 12%
senior discount notes due 2008 and of its exchange offer for all of its
outstanding 11 1/4% senior discount notes due 2009.
Pursuant to the exchange offers, the entire $225,238,000 aggregate principal
amount at maturity of SpectraSite's previously outstanding 12% notes and the
entire $586,800,000 aggregate principal amount at maturity of SpectraSite's
previously outstanding 11 1/4% notes were tendered prior to the expiration of
the respective exchange offers and will be exchanged for the same aggregate
principal amount at maturity of SpectraSite's currently outstanding 12% notes
and 11 1/4% notes. The notes issued in the exchange offers have been registered
under the Securities Act of 1933, as amended. The 12% notes were originally
issued and sold on June 26, 1998, and the 11 1/4% notes were originally issued
and sold on April 20, 1999, in transactions exempt from registration under the
Securities Act.
In each case, the notes issued in the exchange offers have substantially the
same terms and conditions as the previously issued, unregistered notes, except
that the new notes are not subject to the restrictions on resale or transfer
which applied to the unregistered notes.
About SpectraSite Communications, Inc.
SpectraSite Communications, Inc. (www.spectrasite.com), based in Cary, NC, is a
leading owner and operator of communications towers for the wireless
telecommunications industry. SpectraSite owns nearly 2,400 towers in 45 of the
top 50 population centers in the United States, with clusters of towers in major
markets including Los Angeles, Chicago, San Francisco, Detroit, Atlanta, Dallas,
Boston, Cleveland, St. Louis, Seattle, Tampa, Charlotte, Norfolk and Nashville.
SpectraSite has regional offices in the New York, Atlanta, Chicago and San
Francisco areas, from which it offers comprehensive turnkey services, including
project management, site acquisition services, construction and design,
build-to-suit, purchase/leaseback, tower leasing and tower management and
maintenance services to facilitate wireless systems development.
###
