EXHIBIT 10.4
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FOURTH AMENDMENT
TO
ATS FACILITY B LOAN AGREEMENT
THIS FOURTH AMENDMENT TO ATS FACILITY B LOAN AGREEMENT (this "Amendment"),
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dated as of the 9th day of July, 1999 (the "Amendment Date"), by and among
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AMERICAN TOWER, L.P., a Delaware limited partnership, and AMERICAN TOWERS, INC.,
a Delaware corporation (collectively, the "Borrower"), the FINANCIAL
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INSTITUTIONS SIGNATORY HERETO and TORONTO DOMINION (TEXAS), INC., as
administrative agent (the "Administrative Agent") for the Banks (as defined in
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the Loan Agreement 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
by that certain First Amendment to ATS Facility B Loan Agreement dated as of
October 30, 1998, that certain Second Amendment and Waiver to ATS Facility B
Loan Agreement dated as of February 8, 1999 and that certain Third Amendment to
ATS Facility B Loan Agreement dated as of May 27, 1999 (as amended, modified,
supplemented and restated from time to time, the "Loan Agreement"); and
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WHEREAS, the Borrower has requested, and the Banks have agreed, on the terms
and subject to the conditions set forth herein, to make certain amendments to
the Loan Agreement as provided 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 1.
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(a) Article 1 of the Loan Agreement, Definitions, is hereby amended by
adding the following new definitions of "Broker/Dealer" and "communications
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site" thereto in appropriate alphabetical order:
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"'Broker/Dealer' shall mean, with respect to any Investment or
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Acquisition permitted under Section 7.6(a) hereof, (a) any broker/dealer
(acting as principal) registered as a broker or a dealer under Section 15
of the Exchange Act, the unsecured short-term debt obligations of which are
rated "P-1" by ▇▇▇▇▇'▇ Investors Service, Inc. and at least "A-1" by
Standard and Poor's Ratings Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., at the time of entering into such Investment or Acquisition or (b) an
unrated, broker/dealer, acting as principal, that is a wholly-owned
Subsidiary of a non-bank or bank holding company, the unsecured short-term
debt obligations of which are rated "P-1" by ▇▇▇▇▇'▇ Investors Service,
Inc. and at least "A-1" by Standard and Poor's Ratings Group, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., at the time of entering into such
Investment or Acquisition."
"'communications site' shall mean (a) any undeveloped real property
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and (b) communication towers which have no bona fide customers on the date
of acquisition thereof."
(b) Article 1 of the Loan Agreement, Definitions, is hereby amended by
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deleting the definitions of "Fixed Charges Coverage Ratio" and "Subsidiary" in
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their entirety and by substituting the following in lieu thereof in appropriate
alphabetical order:
"'Fixed Charges Coverage Ratio' shall mean, as of any calculation
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date, the ratio of (a) the sum of (i) Annualized Operating Cash Flow as of
the most recently completed fiscal quarter, plus (ii) the sum of (A) the
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amount of unused Commitments as of such date under this Agreement and the
ATS Facility A Loan Agreement which could be borrowed on such date in
compliance with Section 7.8 hereof, plus, (B) to the extent then reflected
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as net cash on the balance sheet of either Borrower, the net cash proceeds
of any equity issued, directly or indirectly, by either Borrower and
received by either Borrower from the Parent (after deducting any portion
thereof applied to the Loans or the Facility A Loans) to (b) Fixed
Charges."
"'Subsidiary' shall mean, as applied to any Person, (a) any
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corporation of which no less than fifty percent (50%) of the outstanding
stock (other than directors' qualifying shares) having ordinary voting
power to elect a majority of its board of directors, regardless of the
existence at the time of a right of the holders of any class or classes of
securities of such corporation to exercise such voting power by reason of
the happening of any contingency, or any partnership of which no less than
fifty percent (50%) of the outstanding partnership interests, is at the
time owned directly or indirectly by such Person, or by one or more
Subsidiaries of such Person, or by such Person and one or more Subsidiaries
of such Person, provided, however, that if such Person and/or such Person's
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Subsidiaries directly or indirectly own no more than fifty percent (50%) of
such Subsidiary's ownership interests, then such Subsidiary's operating or
governing documents must require (i) such Subsidiary's net cash after the
establishment of reserves be distributed to its equity holders no less
frequently than quarterly and (ii) the consent of such Person and/or such
Person's Subsidiaries to amend or otherwise modify the
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provisions of such operating or governing documents requiring such
distributions, or (b) any other entity which is directly or indirectly
controlled or capable of being controlled by such Person, or by one or more
Subsidiaries of such Person, or by such Person and one or more Subsidiaries
of such Person."
2. Amendment to Article 7. Section 7.6 of the Loan Agreement, Investments
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and Acquisitions, is hereby amended by deleting subsections (a), (b) and (c)
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thereof in their entirety and by substituting the following in lieu thereof:
"(a) directly or through a brokerage account or investment
adviser (i) purchase marketable, direct obligations of the United
States of America, its agencies and instrumentalities maturing within
three hundred sixty-five (365) days of the date of purchase, (ii)
purchase commercial paper and other short-term obligations and
business savings accounts issued by corporations, each of which shall
have a combined net worth of at least $100,000,000 and each of which
conducts a substantial part of its business in the United States of
America, maturing within two hundred seventy (270) days from the date
of the original issue thereof, and whose issuer is, at the time of
purchase, rated "P-2" or better by ▇▇▇▇▇'▇ Investors Service, Inc. or
"A-2" or better by Standard and Poor's Ratings Group, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., (iii) purchase repurchase agreements,
bankers' acceptances, and domestic and Eurodollar certificates of
deposit maturing within three hundred sixty-five (365) days of the
date of purchase which are issued by, or time deposits maintained
with, (A) a United States national or state bank (or any domestic
branch of a foreign bank) subject to supervision and examination by
federal or state banking or depository institution authorities and
having capital, surplus and undivided profits totaling more than
$100,000,000 and rated "A" or better by ▇▇▇▇▇'▇ Investors Service,
Inc. or Standard and Poor's Ratings Group, a division of The ▇▇▇▇▇▇-
▇▇▇▇, Companies, Inc., or (B) a Broker/Dealer, and (iv) invest in
money market funds having a rating from ▇▇▇▇▇'▇ Investors Service,
Inc. and Standard and Poor's Ratings Group, a division of The ▇▇▇▇▇▇-
▇▇▇▇, Companies, Inc. in the highest investment category granted
thereby;
(b) so long as no Default then exists or would be caused thereby,
establish Unrestricted Subsidiaries and make Investments in such
Unrestricted Subsidiaries of up to, in the aggregate, at any time, the
sum of (i) $60,000,000 with loans borrowed under this Agreement or the
ATS Facility B Loan Agreement, and (ii) equity proceeds not used to
pay the Separation Obligations or to make Investments permitted under
Sections 7.6(c) and (d) hereof;
(c) so long as no Default then exists or would be caused thereby,
and subject to compliance with Section 5.13 hereof, make Acquisitions;
provided, however, that Acquisitions of communications sites, tower
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management businesses and other services businesses, such as
construction and teleport
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businesses, shall not exceed, in the aggregate, at any time, the sum
of (i) $50,000,000 and (ii) equity proceeds not used to pay the
Separation Obligations after the Agreement Date or to make Investments
permitted under Sections 7.6(b) and (d) hereof;"
3. No Other Amendment or Waiver. Except for the amendments set forth
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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. Representations and Warranties. The Borrower hereby represents
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and warrants in favor of each of the Administrative Agent and each Bank that the
representations and warranties contained in Section 4.1 of the Loan Agreement
and contained in the other Loan Documents remain true and correct as of the date
hereof, both before and after giving effect to this Amendment, except to the
extent previously fulfilled in accordance with the terms of the Loan Agreement
or such other Loan Document, as applicable, or to the extent relating
specifically to the Agreement Date. No Default now exists or will be caused
hereby.
5. Condition Precedent. The effectiveness of this Amendment is
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subject to the receipt by the Administrative Agent of counterparts hereof
executed by the Banks and the Borrower and of all documents, instruments,
consents or items which the Administrative Agent shall deem appropriate in
connection herewith.
6. 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.
7. 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.
8. 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.
9. Severability. Any provision of this Amendment which is
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prohibited 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.
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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, L.P.
By ATC GP INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Title: Chief Financial Officer
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AMERICAN TOWERS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Title: Chief Financial Officer
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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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Authorized Signatory
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BANK OF MONTREAL, as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇
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Title: Director
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THE BANK OF NEW YORK, as a Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Title: Authorized Signatory
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BANK OF SCOTLAND, as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Assistant Vice President
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BANKBOSTON, N.A., as a Bank
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title: Director
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BANKERS TRUST COMPANY, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Principal
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BARCLAYS BANK, PLC, as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Director
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THE CHASE MANHATTAN BANK, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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THE CIT GROUP/EQUIPMENT FINANCING, INC., as a Bank
By: /s/ ▇. ▇. ▇▇▇▇▇▇
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Title: Assistant Vice President
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CITY NATIONAL BANK, as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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COBANK, ACB, as a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇
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Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH, as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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CREDIT SUISSE FIRST BOSTON, as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Director
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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CRESTAR BANK, as a Bank
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
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DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES,
as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Assistant Vice President
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FIRST NATIONAL BANK OF MARYLAND, as a Bank
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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FLEET NATIONAL BANK, as a Bank
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Title: Assistant Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION, as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Manager of Operations
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THE ▇▇▇▇▇▇ BANK, N.A., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Senior Vice President
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KEY CORPORATE CAPITAL INC., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
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▇▇▇▇▇▇ COMMERCIAL PAPER INC., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Authorized Signatory
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MELLON BANK, N.A., as a Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Assistant Vice President
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MERCANTILE BANK NATIONAL ASSOCIATION, as a Bank
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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THE MITSUBISHI TRUST AND BANKING CORPORATION, as a Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Senior Vice President
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NATIONAL BANK OF CANADA, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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By: /s/ ▇▇▇▇▇ Drum
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Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION, as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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STATE STREET BANK AND TRUST COMPANY, as a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Vice President
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UNION BANK OF CALIFORNIA, N.A., as a Bank
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Assistant Vice President
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US TRUST, as a Bank
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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▇▇▇▇▇▇▇ BANK, as a Bank
By:
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Title:
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