EXHIBIT 10.6
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FIRST AMENDMENT
TO
PARENT LOAN AGREEMENT
THIS FIRST AMENDMENT TO PARENT LOAN AGREEMENT (this "Amendment"), dated as
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of the 9th day of July, 1999 (the "Amendment Date"), by and among AMERICAN
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TOWER CORPORATION, a Delaware corporation (the "Borrower"), the FINANCIAL
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INSTITUTIONS SIGNATORY HERETO and TORONTO DOMINION (TEXAS), INC., as
administrative agent (the "Administrative Agent") for the Lenders (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 Lenders and the Administrative Agent are parties
to that certain Parent Loan Agreement dated as of June 16, 1998 (as amended,
modified, supplemented and restated from time to time, the "Loan Agreement");
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and
WHEREAS, the Borrower has requested, and the Lenders 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
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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 Acquisition
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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
deleting the definition of "Subsidiary" in its entirety and by substituting the
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following in lieu thereof:
"'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
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 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) the Borrower and any Restricted Subsidiary may 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,
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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, any
Restricted Subsidiary may 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 the ATS
Facility A Loan Agreement or the ATS Facility B Loan Agreement, and (ii)
and 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 5.12 hereof, any Restricted Subsidiary
may make Acquisitions; provided, however, that Acquisitions described in
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clause (iii) of the definition of "Acquisitions" and Acquisitions of other
services businesses, such as construction and teleport businesses, shall
not exceed at any time, in the aggregate, 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 Section 7.6(b) and
(d) hereof;"
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 Lenders 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 Lenders 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 Lenders
at variance with the Loan Agreement or any of the other Loan Documents, such as
to require further notice by the Administrative Agent, the Lenders or the
Majority Lenders 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 Lender that
the representations and
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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 Lenders 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 prohibited or
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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 Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: AMERICAN TOWER CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Title: Chief Financial Officer
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ADMINISTRATIVE AGENT
AND LENDERS: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent for itself and for the
Lenders and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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ARCHIMEDES FUNDING II, LTD, as a Lender
By: ING Capital Advisors, LLC, as Collateral
Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President and Portfolio Manager
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DEBT STRATEGIES FUND, INC., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Authorized Signatory
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DEBT STRATEGIES FUND II, INC., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Authorized Signatory
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FC CBO II LIMITED, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: Collateral Manager
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FIRST DOMINION FUNDING I, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Authorized Signatory
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FIRST DOMINION FUNDING II, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Authorized Signatory
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FRANKLIN FLOATING RATE TRUST, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Vice President
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GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Manager-Operations
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ING HIGH INCOME PRINCIPAL PRESERVATION FUND
HOLDINGS, LDC
By: ING Capital Advisors, Inc., as Investment
Advisors, Inc., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Vice President and Portfolio Manager
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KZH SHOSHONE LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Authorized Agent
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▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL INVESTMENT SERIES INCOME
STRATEGIES PORTFOLIO, as a Lender
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P., as
Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Authorized Signatory
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OCTAGON INVESTMENT PARTNERS II, LLC, as a
Lender
By: Octagon Credit Investors, LLC, as Sub
Investment Managers
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Portfolio Manager
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OCTAGON LOAN TRUST, as a Lender
By: Octagon Credit Investors, LLC, as Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Managing Director
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SANKATY HIGH YIELD ASSET PARTNERS, L.P., as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Portfolio Manager
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SENIOR HIGH INCOME PORTFOLIO, INC., as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Authorized Signatory
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UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Assistant Vice President
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