FIRST AMENDMENT TO ATS FACILITY B LOAN AGREEMENT
EXHIBIT 10.4
FIRST AMENDMENT
TO
ATS FACILITY B LOAN AGREEMENT
THIS FIRST AMENDMENT TO ATS FACILITY B LOAN AGREEMENT (this "Amendment"),
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dated as of the 30th day of October, 1998 (the "Amendment Date"), by and among
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AMERICAN TOWER SYSTEMS, L.P., a Delaware limited partnership, and AMERICAN
TOWERS, INC. (formerly known as American Tower Systems (Delaware), Inc.), a
Delaware corporation (collectively, the "Borrower"), the FINANCIAL INSTITUTIONS
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SIGNATORY HERETO and TORONTO DOMINION (TEXAS), INC., as administrative agent
(the "Administrative Agent") for the Banks (as defined in the Loan Agreement
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defined below);
W I T N E S S E T H:
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WHEREAS, the Borrower, the Banks and the Administrative Agent are parties
to that certain ATS Facility B Loan Agreement dated as of June 16, 1998 (as
amended, modified, supplemented and restated from time to time, the
"Loan Agreement"); and
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WHEREAS, the Borrower has informed the Administrative Agent that it would
like to make investments (a) in entities with whom it has not signed an
acquisition agreement and (b) using assets, neither of which is currently
permitted under Section 7.6, Investments and Acquisitions, of the Loan
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Agreement; and WHEREAS, the Borrower has requested that the Banks amend the
Loan Agreement to permit such investments; and
WHEREAS, the Borrower and the Banks have agreed to amend the Loan Agreement
on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used herein shall have the
meanings ascribed thereto in the Loan Agreement, and further agree as follows:
1. Amendments to Article 7.
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(a) Section 7.6 of the Loan Agreement, Investments and Acquisitions, is
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hereby amended by deleting subsection (b) thereof in its entirety and by
substituting the following in lieu thereof:
"(b) so long as no Default then exists or would be caused thereby,
establish Unrestricted Subsidiaries and make Investments in such
Unrestricted Subsidiaries using (i) cash or, (ii)(A) that certain tower
located in Newton, Massachusetts (acquired from Intracoastal Broadcasting,
Inc.) and (B) with the consent of the Majority Banks, other assets, which,
in the aggregate for clauses (i) and (ii) hereof do not exceed, at any
time, (x) the sum of (i) $50,000,000 and (ii) equity proceeds (which may be
retained by the Borrowers under Section 2.7 hereof) not used to pay the
Separation Obligations or to make Investments permitted under Sections
7.6(c) and (d) hereof, minus (y) the aggregate value of the assets invested
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(valuing such assets at the time of investment as may be agreed to by the
Administrative Agent), if any, in such Unrestricted Subsidiaries."
(b) Section 7.6 of the Loan Agreement, Investments and Acquisitions, is
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hereby further amended by deleting subsection (d) thereof in its entirety and by
substituting the following in lieu thereof:
"(d) so long as no Default then exists or would be caused thereby
and subject to compliance with Section 5.13 hereof, make Investments in
communications sites and in related companies and related businesses using
cash in an aggregate amount not to exceed, at any time, the sum of (A)
$25,000,000 and (B) equity proceeds (which may be retained by the Borrowers
under Section 2.7 hereof) not used to pay the Separation Obligations or to
make Investments permitted under Sections 7.6(b) and (c); provided,
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however, that no more than $30,000,000 may be invested hereunder in the
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aggregate in any Persons with whom the Parent, either Borrower or any of
their Subsidiaries has not executed a binding acquisition or merger
agreement;"
2. Miscellaneous Amendments.
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(a) Article 1 of the Loan Agreement, Defined Terms is hereby amended as
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follows:
(1) The term "Facility A Capital Raise Proceeds" is hereby amended
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by inserting the phrase "together with all proceeds of the equity offering by
the Parent prior to July 31, 1998," in part (2) of the proviso in section (a)(i)
of such definition immediately following the words "to pay the fees and other
costs and expenses associated with the Interim Financing,".
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(2) The term "Loan Documents" is hereby amended by inserting the
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phrase "or any of their affiliates," immediately following the words "all
Interest Rate Hedge Agreements between either Borrower, on the one hand, and the
Administrative Agent and the Banks,".
(b) Article 2 of the Loan Agreement, Loans, is hereby amended by
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inserting in part (iv) of Section 2.2(e), Manner of Borrowing and Disbursement:
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Disbursement, the phrase "or 'Required Lenders'" immediately following the
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words "shall not be counted as outstanding for purposes of determining
"'Majority Banks'".
3. No Other Amendment or Waiver. Except for the amendments set
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forth above, the text of the Loan Agreement and all other Loan Documents shall
remain unchanged and in full force and effect. No waiver by the Administrative
Agent or the Banks under the Loan Agreement or any other Loan Document is
granted or intended except as expressly set forth herein, and the Administrative
Agent and the Banks expressly reserve the right to require strict compliance in
all other respects (whether or not in connection with any Requests for Advance).
Except as set forth herein, the amendment agreed to herein shall not constitute
a modification of the Loan Agreement or any of the other Loan Documents, or a
course of dealing with the Administrative Agent and the Banks at variance with
the Loan Agreement or any of the other Loan Documents, such as to require
further notice by the Administrative Agent, the Banks or the Majority Banks to
require strict compliance with the terms of the Loan Agreement and the other
Loan Documents in the future.
4. Loan Documents. This document shall be deemed to be a Loan
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Document for all purposes under the Loan Agreement and the other Loan Documents.
5. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
6. Governing Law. This Amendment shall be construed in accordance
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with and governed by the laws of the State of New York.
7. Severability. Any provision of this Amendment which is prohibited
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or unenforceable shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision in
any other jurisdiction.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWERS: AMERICAN TOWER SYSTEMS, L.P.
By ATSC GP, INC., its General Partner
By:
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Title:
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AMERICAN TOWER SYSTEMS (DELAWARE), INC.
By:
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Title:
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ADMINISTRATIVE AGENT
AND BANKS: TORONTO DOMINION (TEXAS), INC., as Administrative Agent
for itself and the Banks and as a Bank
By:
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Title:
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as a Bank
By:
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Title:
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BANK OF MONTREAL, as a Bank
By:
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Title:
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THE BANK OF NEW YORK, as a Bank
By:
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Title:
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THE BANK OF NOVA SCOTIA, as a Bank
By:
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Title:
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BANKBOSTON, N.A., as a Bank
By:
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Title:
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BANKERS TRUST COMPANY, as a Bank
By:
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Title:
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BARCLAYS BANK, PLC, as a Bank
By:
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Title:
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THE CHASE MANHATTAN BANK, as a Bank
By:
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Title:
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THE CIT GROUP/EQUIPMENT FINANCING, INC., as a Bank
By:
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Title:
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CITY NATIONAL BANK, as a Bank
By:
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Title:
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COBANK, ACB, as a Bank
By:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH, as a Bank
By:
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Title:
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CREDIT SUISSE FIRST BOSTON, as a Bank
By:
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Title:
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By:
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Title:
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CRESTAR BANK, as a Bank
By:
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Title:
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DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as a Bank
By:
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Title:
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By:
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Title:
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FIRST NATIONAL BANK OF MARYLAND, as a Bank
By:
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Title:
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FLEET NATIONAL BANK, as a Bank
By:
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Title:
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GENERAL ELECTRIC CAPITAL CORPORATION, as a Bank
By:
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Title:
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THE ▇▇▇▇▇▇ BANK, N.A., as a Bank
By:
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Title:
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KEY CORPORATE CAPITAL INC., as a Bank
By:
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Title:
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▇▇▇▇▇▇ COMMERCIAL PAPER INC., as a Bank
By:
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Title:
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THE LONG-TERM CREDIT BANK OF JAPAN, LTD., NEW YORK
BRANCH, as a Bank
By:
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Title:
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MELLON BANK, N.A., as a Bank
By:
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Title:
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MERCANTILE BANK NATIONAL ASSOCIATION, as a Bank
By:
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Title:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as a Bank
By:
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Title:
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NATIONAL BANK OF CANADA, as a Bank
By:
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Title:
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By:
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Title:
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PNC BANK, NATIONAL ASSOCIATION, as a Bank
By:
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Title:
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SOCIETE GENERALE, NEW YORK BRANCH, as a Bank
By:
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Title:
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STATE STREET BANK AND TRUST COMPANY, as a Bank
By:
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Title:
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UNION BANK OF CALIFORNIA, N.A., as a Bank
By:
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Title:
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US TRUST, as a Bank
By:
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Title:
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